Rodriguez et al v. United States of America et al

Filing 140

ORDER Overruling Plaintiffs' Objections to Magistrate Judge's May 15, 2009 Discovery Order. Signed by Judge Thomas J. Whelan on 11/6/2009. (cap) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Pending before the Court are Plaintiffs' objections to Magistrate Judge Jan M. 21 Adler's May 15, 2009 discovery order. Judge Adler denied Plaintiffs' requests to (1) re22 open the deposition of Chief Patrol Agent Michael Fisher; and (2) compel production 23 of members of the Disciplinary Review Board ("DRB") for deposition or, in the 24 alternative, compel the production of all documents reviewed by the DRB in deciding to 25 take "no action" against Agent Faustino Campos following the shooting death of 26 Guillermo Martinez. 27 28
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
OFELIA RODRIGUEZ, et al., vs. Plaintiffs, CASE 06-CV-2753 W (JMA) ORDER OVERRULING PLAINTIFFS' OBJECTIONS TO MAGISTRATE JUDGE'S MAY 15, 2009 DISCOVERY ORDER

UNITED STATES OF AMERICA, et al., Defendants.

1

The court decides the matter on the papers submitted and without oral argument For the reasons discussed below, the Court

2 pursuant to Local Rule 7.1(d)(1). 4 5 I. 6 FACTUAL BACKGROUND

3 OVERRULES Plaintiffs' objections (Doc. Nos. 99, 108).

On December 30, 2005, Decedent Guillermo Martinez, along with four other

7 persons, attempted to enter the United States near the San Ysidro port of entry. 8 Defendant U.S.A. asserts that Decedent was smuggling aliens. 9 As Decedent and the other persons came to the secondary fence, Agent Campos 10 approached in his vehicle. When Agent Campos exited his vehicle, Decedent ran and 11 Agent Campos gave chase. During the pursuit, Agent Campos fired his weapon striking 12 Decedent beneath the shoulder blade. Despite being shot, Decedent continued to run, 13 re-entered Mexico, and proceeded to a hospital. Decedent later died due to the gunshot 1 4 wound. 15 Plaintiffs filed their Complaint on December 20, 2006 for wrongful death under 16 the Federal Tort Claims Act. Under the Amended Case Management Order, the 17 discovery cut-off was set for December 9, 2008. 18 On October 9, 2008, Plaintiffs propounded requests for admission ("RFAs") on 19 Defendant U.S.A. (See Singleton Decl. [Doc. 108-2], Ex. H at Ex. 2.) Requests 17 and 18 20 sought an admission that no U.S. Border Patrol agent or employee, and no agent or 21 employee of any agency or office of the U.S. Government, made a determination 22 regarding whether Agent Campos' shooting "was consistent with the polices and 23 procedures adopted by the [U.S.] that govern the use of deadly force by law enforcement 24 officers of the U.S." (Id., Ex. H at Ex. 2, p.2.) 25 On November 12, 2008, Defendant responded to the requests by stating, in part, 26 that no such determination had been made. However, Defendant advised Plaintiffs that 27 the DRB reviewed Agent Campos' use of force to determine whether there was any 28 evidence of misconduct that would warrant administrative discipline, that the DRB
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1 found no such evidence, and that the DRB did not impose discipline of any kind. 2 (Singleton Decl., Ex. H at Ex. 3, pp. 3­4.) 3 On December 16, 2008, Plaintiffs sent Judge Adler a letter identifying a "list of 4 discovery issues...." (Def.'s Ex. Part I [Doc. No. 116-1], Ex. 5 at p.1.) Among the issues, 5 Plaintiffs sought to depose DRB members who reviewed Agent Campos's use of force, 6 and Plaintiffs requested all documents the DRB reviewed in reaching its decision. (Id.) 7 On January 15, 2009, Judge Adler held a discovery hearing. During the hearing, 8 Defendant agreed to respond to two additional interrogatories regarding whether a 9 determination was made that the shooting was consistent with the policies and 10 procedures adopted by the U.S. governing the use of deadly force. (Def.'s Ex. Part I, Ex. 11 7 at p.13; Def.'s Ex. Part II [Doc. No. 116-2], Ex. 8 at pp. 3­4.) Judge Adler then denied 12 Plaintiffs' requests regarding the DRB, subject to Defendant responding to the 13 interrogatories. (Def.'s Ex. Part I, Ex. 7 at p.15.) 14 On January 16, 2009, Defendant U.S.A. sent Plaintiffs a letter stating that 15 Defendant reserved the right to offer testimony as to the DRB and its conclusion about 16 the shooting at trial. Based on this reservation, Plaintiffs renewed their demand to 17 depose the DRB members and for production of the DRB's documents. (Singleton Decl., 18 Ex. G at pp. 1­2.) Later, another dispute arose between the parties regarding whether 19 Plaintiffs could re-open the deposition of Chief Patrol Agent Michael Fisher. 20 On May 15, 2009, Judge Adler held another discovery hearing regarding the two 21 issues. Judge Adler ultimately denied Plaintiffs' discovery requests. Plaintiffs' objections 2 2 followed. 23 24 II. 25 STANDARD OF REVIEW A party may object to a non-dispositive pretrial order of a U.S. Magistrate Judge

26 within ten days after service of the order. See FED. R. CIV. P. 72(a). The magistrate 27 judge's order will be upheld unless it is "clearly erroneous or contrary to law." Id.; 28 28 U.S.C. § 636(b)(1)(A). The "clearly erroneous" standard applies to the magistrate judge's
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1 factual determinations and discretionary decisions, including an order imposing discovery 2 sanctions. Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir. 1990) (holding 3 that factual determinations made in connection with sanction award are reviewable for 4 clear error); Grimes v. City and County of San Francisco, 951 F.2d 236, 240 (9th Cir. 5 1991) (holding that discovery sanctions are non-dispositive pretrial matters reviewable for 6 clear error under Rule 72(a)). Under this standard, "the district court can overturn the 7 magistrate judge's ruling only if the district court is left with the definite and firm 8 conviction that a mistake has been made." Weeks v. Samsung heavy Industries Co., Ltd., 9 126 F.3d 926, 943 (7th Cir. 1997). 10 On the other hand, the "contrary to law" standard permits independent review of 11 purely legal determinations by a magistrate judge. See, e.g., Haines v. Liggett Group, Inc., 12 975 F.2d 81, 91 (3d Cir. 1992) ("the phrase `contrary to law' indicates plenary review as 13 to matters of law."); 12 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. 14 MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3069 at 350 & 355 (2d ed. 1997); 15 Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992), Aff'd 19 F.3d 1432 (6th Cir. 16 1994) ("Thus, [the district court] must exercise its independent judgment with respect to 17 a magistrate judge's legal conclusions."). 18 19 III. 20 DISCUSSION Plaintiffs object to Judge Adler's ruling denying Plaintiffs' request to (1) re-open

21 the deposition of Chief Fisher, and (2) compel Defendant U.S.A. to produce the DRB 22 members for deposition or, in the alternative, compel Defendant to produce all 23 documents reviewed by the DRB in deciding whether to take "no action" against Agent 24 Campos. For the reasons stated below, the Court will overrule both objections. 25 26 27 28
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1 2

A.

Chief Fisher's Deposition.

Judge Adler denied Plaintiffs' request to re-open Chief Fisher's deposition because

3 (1) Plaintiffs were given the opportunity to ask additional questions immediately after the 4 conclusion of the original deposition, and (2) since Chief Fisher was a fact witness, 5 Plaintiffs' counsel was responsible for asking any necessary follow-up questions. Plaintiffs 6 object on the ground that Judge Adler erred in finding that Chief Fisher is a fact witness, 7 and not an expert witness. 8 But as Defendant U.S.A. acknowledges, Chief Fisher will not be offering expert 9 opinion at trial. Instead, his testimony will consist of factual information about the U.S. 10 Border Patrol's mission, organization, operations, as well as how the Border Patrol 11 conducts investigations. Given Chief Fisher's position, his testimony will be based on his 12 experience and perceptions, and does not constitute expert opinion. 13 Moreover, the Court also agrees with Judge Adler's finding that Plaintiffs were 14 given an opportunity to ask additional questions at the conclusion of Chief Fisher's 15 deposition and, later, in the form of written interrogatories. Plaintiffs chose not to ask 16 follow up questions. 17 18 19 20 B. The DRB Discovery. Judge Adler denied Plaintiffs' request to depose members of the DRB and for the For these reasons, Plaintiffs' objection is overruled.
1

21 production of documents that the DRB reviewed in determining that administrative 22 discipline was not warranted against Agent Campos. These documents consist of the San 23 Diego Police Department's report of the shooting, and internal memos from the Office 24 of the Inspector General ("OIG"). 25 27 28
However, because Chief Fisher was not designated as an expert, Defendant may not attempt to elicit expert testimony from him at trial.
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Plaintiffs object that because Defendant U.S.A. intends to introduce evidence at

26 trial regarding "the DRB or its conclusion . . ., Plaintiffs must be permitted to depose the
1

1 three (3) members of the DRB and review any and all documents reviewed by the DRB 2 in making its decision." (Obj., 8:18­22.) In short, Plaintiffs' objection is premised on the 3 theory that they have not been permitted to conduct discovery relating to the DRB. The 4 Court is not persuaded. 5 Apparently, Plaintiffs did not learn about the DRB until approximately November 6 12, 2008, when Defendant, in responding to Plaintiffs' RFAs, discussed the DRB's review 7 of the shooting. While Plaintiffs suggest that this delay in learning about the DRB is 8 somehow attributable to Defendant, the record establishes that Plaintiffs are responsible. 9 Specifically, until propounding the RFA s two months before the discovery deadline, 10 Plaintiffs did not propound an interrogatory calling for information related to the DRB's 11 review of the shooting. During the hearing, Plaintiffs argued that certain previously 12 propounded interrogatories required Defendant to disclose the DRB's review. However, 13 having reviewed the transcript, the Court agrees with Judge Adler's finding to the 14 contrary. Accordingly, Plaintiffs' insinuation that their dely in learning about the DRB 15 is attributable to Defendant U.S.A. lacks merit. 16 Moreover, the record establishes that the documents Plaintiffs seek were either 17 produced or identified on a privilege log months before the discovery deadline. (Singleton 18 Decl., Ex. A at pp. 29­36.) Specifically, Defendant produced the police report, but 19 refused to produce the internal OIG memos and therefore listed the memos on a 20 privilege log. Plaintiffs, however, did not challenge Defendant's refusal to produce the 21 OIG memos until after the close of discovery. Plaintiffs again attempt to justify their 22 inaction on the ground that they were unaware of the DRB. But as discussed above, 23 Plaintiffs are responsible for the delay in learning about the DRB. 24 Finally, having reviewed the transcript of the May 15, 2009 hearing, the Court also 25 agrees with Judge Adler's concern regarding the relevance of the documents sought, 26 particularly in light of this Court's previous rulings. However, at this time, the Court will 27 refrain from deciding whether evidence concerning the DRB is admissible at trial. 28
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1 IV. 2 3 4 5

CONCLUSION For the reasons stated above, Plaintiffs' objections are OVERRULED. IT IS SO ORDERED.

6 DATED: November 6, 2009 7 8 9 10 cc: All Parties 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Hon. Thomas J. Whelan United States District Judge