Bashkin v. San Diego County et al

Filing 98

ORDER DENYING 92 MOTION for Order to Reopen Discovery filed by Paul Bashkin. Signed by Magistrate Judge William V. Gallo on 04/19/2011.(All non-registered users served via U.S. Mail Service)(ajf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL BASHKIN,

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Plaintiff,
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v.
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SAN DIEGO COUNTY, et al.,
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Defendants.
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_______________________________ )

No. 08-CV-1450-AJB(WVG)
ORDER DENYING PLAINTIFF’S EX
PARTE MOTION FOR ADDITIONAL
LIMITED DISCOVERY
[DOC. NO. 92]

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Plaintiff, proceeding in pro per, moves the Court for an

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order to re-open discovery on a limited basis so that he may explore

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five enumerated areas.

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motion is DENIED.

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For the reasons stated below, Plaintiff’s

I.

BACKGROUND

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Filed on August 8, 2008, this case has involved a long series

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of hard-fought discovery disputes, with both sides at times behaving

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below the standard which this Court expects.

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to conduct all discovery passed on December 7, 2009, (Doc. No. 16 at

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1), these disputes nonetheless persisted and culminated in the

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issuance of a 61-page Order on January 13, 2011, which the Court

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expected would be the end of the disputes.

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Plaintiff persists.

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Although the deadline

(See Doc. No. 83.)

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But

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Plaintiff’s present motion comes late in the case, with the

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final pretrial conference set for May 6, 2011–-barely over one month

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from the date he filed this motion.

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III.

(Doc. No. 91.)

LEGAL STANDARD

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Federal Rule of Civil Procedure 16 provides a stringent

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standard whereby the party who seeks to amend the Court’s scheduling

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order must show “good cause” why the Court should set aside or

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extend a discovery deadline.

See Fed. R. Civ. P. 16(b)(4).

The

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scheduling order may only be amended with the Court’s consent.

Id.

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Under Rule 16(b)’s good cause standard, the Court’s primary

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focus is on the movant’s diligence in seeking the amendment.

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Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992).

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“Good cause” exists if a party can prove the schedule “cannot

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reasonably be met despite the diligence of the party seeking the

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extension.”

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notes (1983 amendment)).

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finding of diligence and offers no reason for a grant of relief.

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Although the existence or degree of prejudice to the party opposing

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the modification might supply additional reasons to deny a motion,

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the focus of the inquiry is upon the moving party’s reasons for

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seeking modification.”

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seeking modification was not diligent in his or her pretrial

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preparations, the inquiry should end there and the measure of relief

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sought from the Court should not be granted.

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

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to continue or extend the deadlines bears the burden of proving good

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cause.

Id. (citing Fed. R. Civ. P. 16 advisory committee’s
“[C]arelessness is not compatible with a

Id. (citations omitted).

If the party

Zivkovic v. S. Cal.
The party seeking

See id.; Johnson, 975 F.2d at 608.

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III.
A.

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RULINGS

Special Interrogatory On Plaintiff’s Second Claim
Plaintiff first seeks to propound one special interrogatory

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to Defendant Kluge.

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relates to Plaintiff’s second claim for violation of 28 U.S.C.

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Section 1985.

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summary judgment on this claim in early 2010, and Plaintiff was

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allowed to amend his Complaint to reinstate this claim in late 2010.

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The claim’s presence in this action became final on January 17,

(Doc. No. 92-2 at 20.)

That interrogatory

As Plaintiff correctly recounts, Defendants won

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2011, when Defendants’ second motion to dismiss was denied.

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meantime, Plaintiff explains, he was unable to propound discovery on

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this claim because it had been dismissed from the suit at the time

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when he propounded interrogatories to Kluge.1/ However, as explained

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below, the Court denies Plaintiff’s request for leave to propound

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the proposed interrogatory.

In the

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1.

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The first two factors that inform the Court’s ruling include

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the fact that this case is swiftly approaching its 3-year anniver-

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sary, and allowing further discovery will impact Judge Battaglia’s

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final pretrial conference date.

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with how discovery in this case has proceeded, which experience

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informs the Court on how future discovery will proceed.

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the Court’s past experience with both sides in this action, the

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Court is certain that allowing the requested discovery at this late

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stage will significantly delay this case.

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proven history, Plaintiff will propound his interrogatory, Defen-

The Potential For Significant Delay

The Court has had ample experience

Based on

Based on the parties’

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1/

The Court previously allowed Plaintiff to propound limited
interrogatories to Kluge in lieu of continuing Kluge’s deposition.
(Doc. No. 59 at 2.)

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dants will provide either a half-answer or an adequate answer,

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Plaintiff

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response and file an outraged discovery dispute even if the response

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is wholly adequate, and the Court will referee a dispute process

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that will likely take months.

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motions for reconsideration and follow-up disputes.

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the pretrial conference and ensuing final resolution of this case

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will very likely be pushed into next year.

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will

pick

apart

every

minute

detail

of

Defendants’

All of this will then be followed by
As a result,

However, the Court emphasizes that this delay is not the main

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driving force behind its ruling.

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Courts ruling are (1) the nature of the proposed interrogatory and

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(2) Plaintiff’s inability to meet his burden under Rule 16(b).

The overwhelming bases for the

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2.

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The Court has reviewed Plaintiff’s proposed interrogatory and

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concludes that, as crafted, it will be of little to no additional

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utility in this case given the nature of both the interrogatory and

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the Answer. Plaintiff seeks a wide range of information relating to

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the Answer’s denial of any material allegation or assertion of an

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affirmative defense.

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Answer

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defenses that are equally applicable to all of Plaintiff’s claim,

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not just his second claim, and are the type of standard defenses

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that are ordinarily intended to preserve issues for a motion to

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dismiss or for summary judgment.

Nature of the Proposed Interrogatory

contains

(Doc. No. 92-2 at 20.)

only

general

denials

and

However, the short
standard

affirmative

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The Answer contains only six affirmative defenses, all of

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which are standard, routinely-pled defenses, and none are directed

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at any specific claim.

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that are ordinarily resolved before trial (e.g., First:

These affirmative defenses include those

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“fails to

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allege facts sufficient to state a claim,” Fourth:

“the action is

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barred by the statute of limitations,” and Fifth:

Defendants “are

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entitled to immunity”), and further discovery on these defenses will

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not advance this case at this stage.

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tive Defenses are inapposite because they are alleged by the County

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only, not Kluge, who is the party to whom the proposed interrogatory

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is directed.

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[sic] that they acted in good faith”) does not apply to Plaintiff’s

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second claim in light of the Answer’s general denial in paragraph 3

The Second and Third Affirma-

The Sixth Affirmative Defense (“Defendants alleges

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of every fact alleged in Plaintiff’s second claim.

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only instance where the Answer specifically addresses Plaintiff’s

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second claim is in paragraph 3, which contains only general denials

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of the facts alleged in the second claim.

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Finally, the

The proposed interrogatory thus has very limited utility in

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light of the nature of the information sought.

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tiff’s request for discovery on his second claim occupies only 12

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lines of his ex parte motion and does not explain why or how the

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interrogatory is necessary. See Qualls v. Blue Cross of Cal., Inc.,

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22 F.3d 839, 844 (9th Cir. 1994) (In the context of a summary

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judgment motion:

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its

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discovery opportunities, and if the movant can show how allowing

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additional

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(emphasis added).

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the Court’s ruling.

discretion

Moreover, Plain-

“We will only find that the district court abused
if

the

discovery

movant

would

diligently

have

precluded

pursued

its

summary

previous

judgment.”)

The above discussion is a significant factor in

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3.

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Another significant factor in the Court’s ruling is the lack

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Plaintiff Has Not Met His Burden to Show “Good Cause”

of a showing of diligence.

Applying Rule 16(b)’s good cause

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standard, Plaintiff has not demonstrated that he has diligently

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sought to propound this single interrogatory to Kluge and has not

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explained the delay.

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The Court understands the chain of events that previously

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precluded Plaintiff from propounding this interrogatory.

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Plaintiff should have been certain that his second claim was firmly

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in this case when Judge Hayes denied Defendants’ motion to dismiss

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on January 17, 2011. Plaintiff should have immediately sought leave

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to propound the interrogatory rather than wait more than two months,

However,

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and a month from the final pretrial conference, to do so.

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aggravation of this delay, Plaintiff does not explain why he waited

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to seek leave.

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delay is given.

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failure to meet his burden under Rule 16(b).

In

In sum, (1) delay exists and (2) no reason for the
Together, these two facts add up to Plaintiff’s

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Based on the totality of the foregoing considerations, the

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Court denies Plaintiff’s request to propound the proposed interroga-

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tory.

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B.

Request to Serve “CAD Disposition” Interrogatory To San Diego
County

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The “CAD Disposition” dispute centers around Plaintiff’s

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desire to pin down the exact number of characters to which a Deputy

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Sheriff is limited when he enters notes on a specific incident into

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his patrol-vehicle-mounted computer.

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Defendants’

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justified because he refused to leave Barona Casino, is a post hoc

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fabrication that can be disproven by reference to the notes Deputy

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Kluge entered into his patrol vehicle’s computer.

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Kluge’s notes apparently made no mention that Plaintiff refused to

contention,

that

their

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Plaintiff theorizes that
actions

against

him

were

Specifically,

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leave the casino.

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any mention of his failure to leave Barona is evidence of Defen-

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dants’ post-hoc, fabricated defense.

It follows, Plaintiff argues, that the lack of

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Plaintiff first sought to discover the exact number of

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characters Kluge could enter into his computer by propounding

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discovery to Deputy Kluge, asking for the exact character limit. On

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November

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responded that he knew there was some sort of character limit but he

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did not know the exact character limit.

10,

2010,

after

some

back

and

forth,

Kluge

finally

(Doc. No. 80-1 at 11-12,

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15.)2/

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Kluge’s response was responsive and Kluge was not the proper party

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to respond to this interrogatory.

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know” is a perfectly valid response, and a party cannot be compelled

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to answer a question to which he does not know the answer.

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Court also concluded that Kluge was not the correct party to respond

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to this interrogatory because, to the extent that Plaintiff wanted

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the exact character limitation, Kluge was not best-suited to respond

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because he was merely the end-user of the CAD program, not the

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program’s inventor, programmer, or an IT professional. (Doc. No. 83

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at 16.)

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easily obtained that information through defendant San Diego County,

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Kluge’s employer and a co-defendant in this lawsuit.” (Id. (quoting

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Plaintiff’s argument).) However, if San Diego County ultimately had

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the information Plaintiff sought, why was Plaintiff trying to force

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Kluge to provide information that the County had? The interrogatory

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should have been propounded to San Diego County ab initio.

In its January 13, 2011, Order, the Court concluded that

(Doc. No. 83 at 16.)

“I don’t

Indeed Plaintiff himself recognized that Kluge “could have

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2/

The

All page citations to documents on the Court’s docket refer to the
Clerk of Court’s renumbering of the document, not the document’s
original pagination.

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Now, nearly two months after the Court’s January 2011 Order,

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and a month before the final pretrial conference, Plaintiff wishes

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to propound to San Diego County an interrogatory that asks for the

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exact character limit to which Kluge was limited when he made his

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CAD incident notes.

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Diego County that Kluge could not provide. He argues that Kluge led

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him to believe that he was the correct party by agreeing to respond

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to the interrogatory and stringing him along.

Plaintiff seeks the same information from San

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However, regardless whether Kluge in fact strung him along,

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the fact remains that Plaintiff could have simultaneously propounded

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the same interrogatory to both Kluge and San Diego County when he

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had the chance to do so.

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to propounded it only to Kluge.

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Plaintiff ever propounded this interrogatory onto San Diego County

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in the past or that anything prevented him from doing so.

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Plaintiff did not propound this interrogatory to San Diego County

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because he believed Kluge was the right party to answer this

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interrogatory

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routinely propounded to multiple opposing parties in litigation. If

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this issue is as important as Plaintiff claims, he should have

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propounded the interrogatory to San Diego County to extract as much

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information as he possibly could from all defendants.

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appears, he did not do so, that was his choice alone.

is

Instead, it appears that Plaintiff chose

irrelevant.

There is no indication that

Identical

Whether

interrogatories

are

If, as it

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The Court finds that Plaintiff has not been diligent in

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pursuing this discovery, has not explained a credible basis for his

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lack of diligence, and as a result denies his request to propound

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this interrogatory to San Diego County.

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this interrogatory to the extent he could, and San Diego County will

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In sum, Kluge has answered

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not be compelled to respond to this interrogatory on the eve of

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trial when Plaintiff could have sought San Diego County’s response

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long ago.

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C.

Requests Related to Barona Photograph and Expulsion Letter

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Plaintiff next seeks leave to serve a document subpoena onto

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a third party, Barona Resort & Casino.

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also seeks to propound a special interrogatory about some of the

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same documents to San Diego County.

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documents and information regarding two items:

(Doc. No 92-2 at 30.)

(Id. at 24:15-24)

He

He seeks

(1) a photograph

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that depicts a sign in the room Plaintiff was held and (2) an

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expulsion letter that was allegedly given to him at the time of the

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underlying

incident.

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establish

Defendants’

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Plaintiff does not explain why he seeks these documents now, as it

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appears Plaintiff knew about them long ago.

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1.

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Plaintiff

Plaintiff
conspiracy

asserts
to

that

suborn

these

documents

perjury.

However,

The Photograph
wishes

to

discover

more

information

about

a

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photograph that Defendants claim depicts a sign on a wall of the

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room Plaintiff was held in on the night of the underlying incident.

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(Id. at 24:15-24; 30.)

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MONITORED BY AUDIO SURVEILLANCE.” (Doc. No. 51-1 at 22.) A caption

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under the photograph reads:

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housed.”

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Defendants have produced it to Plaintiff.

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detailed information about the photograph’s origin:

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obtained, who took it, when it was taken, why it was taken, who

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affixed the caption, et cetera.

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this

(Id.)

information

The sign reads:

“THIS ROOM IS BEING

“Notice in room where Bashkin was

The photograph itself is not at issue because

because

he

What Plaintiff seeks is
when it was

(Doc. No. 92-2 at 24.)

contends

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that

the

He wants

information

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is

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“overwhelming evidence of Kluge’s perjury (in his deposition [in

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September 2009], he testified that he had been in that security

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office ‘many times’ before), but also damning evidence that Kluge

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conspired with Barona to destroy the tapes of the [i]ncident, given

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that Kluge’s only defense to that spoliation-of-evidence charge is

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his professed ignorance of that sign.”

(Doc. No. 92-1 at 8.)

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Plaintiff avers that Defendants have referenced the above-

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described photograph in their initial disclosures and in Kluge’s

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internal affairs file.

Moreover, the photograph was produced to

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Plaintiff.

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Kluge’s story has changed, now contending that he does not have

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knowledge

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Plaintiff has known about the existence of the photograph for a very

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long time. Indeed, Plaintiff himself included this photograph as an

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exhibit to his March 4, 2010, reply to Defendant’s summary judgment

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motion. (Id.) However, glaringly absent from the instant motion is

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any explanation that establishes “good cause” under Rule 16, namely

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that Plaintiff was diligent in seeking this discovery from Barona.

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For example, there is no indication that Plaintiff has ever tried to

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serve such a subpoena in the past, sought leave from the Court to

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serve it, or that he was prevented in any way from doing either.

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Plaintiff could have sought this information from Barona after

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Kluge’s deposition in September 2009.

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Defendants’ initial disclosures.

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point in 2010.

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claim this sign is located at Barona.

While Plaintiff cites these examples to show that

of

this

sign,

these

examples

rather

establish

that

He could have done so after

He could have even done so at any

Plaintiff has known for some time that Defendants

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The Court’s ruling is further informed by the late stage in

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these proceedings as explained above. Ultimately, Plaintiff has not

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met his burden under Rule 16(b).

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2.

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Likewise, it appears that Plaintiff has known about the

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expulsion letter that was allegedly given to him for some time now.

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He states that Defendants have referenced it in their initial

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disclosures, produced it to him, and used it in court filings.

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Plaintiff does not seek production of the letter itself, but rather

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wishes to obtain background information that will ostensibly prove

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that the letter is a post hoc fabrication.

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letter was forged after the night of the incident, was never given

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to Plaintiff, and used to suborn perjury.

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correct,3/ he provides no justification for waiting until the eve of

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trial to seek this discovery. Plaintiff’s request is denied for the

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same reasons stated immediately above.

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The

Expulsion Letter

Court

further

denies

He claims that the

Plaintiff’s

Even Plaintiff is

request

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remaining documents in his proposed subpoena to Barona.

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92-2 at 30.)

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for

areas long ago as well.

(Doc. No.

Plaintiff could have inquired about these subject

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3/

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the

The Court has no opinion whatsoever on this matter and the
possibility of its truth has no bearing on the Court's decision
because such considerations do not have a place in the Rule 16(b)
good cause analysis under the circumstances here.
While it is
conceivable that these facts could be relevant in other cases, for
example where a party discovers new facts at a late stage in the
proceedings, it appears Plaintiff has known about these facts for a
long time. In light of Plaintiff’s long-standing knowledge, the
Court’s focus is on his diligence. Had Plaintiff discovered this
letter a few weeks ago, the Courts analysis might have been
different.

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D.

Witness Statements Made to Sheriff’s Internal Affairs

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Plaintiff demands that Defendants produce hard-copy versions

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of witness statements given by unknown persons to the Sheriff’s

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Internal Affairs Unit.

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apparently agreed to produce summaries of the witness statements as

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well as the actual statements on a compact disc (“CD”).

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apparently received the CD but avers that “it cannot be accessed” by

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him but initially did not explain why he could not access it (e.g.,

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because he does not own a computer, the CD is corrupted, the files

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on the CD are in a format that will not open on Plaintiff’s

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computer, etc.).

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on the CD.

In past meet and confer efforts, Defendants

Plaintiff

Plaintiff now demands paper copies of whatever is

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1.

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Upon reviewing Plaintiff’s motion, the Court ordered that

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Defendants specifically respond to various questions the Court had

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about the CD.

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No. 94).)

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not access the CD.

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that the witness statements were audio recordings and were produced

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to Plaintiff in .wav format, which is a common, widely-used audio

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format that can be played by a wide variety of free audio players.

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For his part, Plaintiff explained: “Because of irreparable problems

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with my computer that would not allow me to download any [audio

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player] program, Chapin agreed to convert the interviews onto a CD

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that would play on my portable CD player.”

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(emphasis added).)

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apparently converted only Plaintiff’s own interview with Internal

The Court Ordered Further Briefing

(See Doc. No. 95 (responding to Court’s Order, Doc.

The Court also asked Plaintiff to explain why he could
(See Doc. No. 97 (same).)

Defendants responded

(Doc. No. 97 at 2

As Plaintiff further explains, Defense counsel

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12

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Affairs, but did not convert the remaining nine witness or party

2

interviews.

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2.

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Defendants have more than complied with their obligations

Ruling

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under the Federal Rules of Civil Procedure.

6

Plaintiff complains that he cannot access the CD, his own explana-

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tion shows that the problem lies with his own computer equipment,

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not with the CD Defendants produced.

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Plaintiff’s computer are his alone and do not invoke any obligation

To the extent that

However, problems with

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on Defendants’ part to help him cure those problems.

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indication that the CD is corrupted in any way such that Plaintiff’s

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inability to access it was caused by Defendants.

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computers are readily available at any public library, and Plaintiff

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could have attempted, and still can attempt, to access the CD there.

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And although it appears that Defendants may have agreed to convert

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the interviews to audio files that would play on Plaintiff’s

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portable CD player, they certainly were not obligated to do so.

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Turning over the files in .wav format satisfied their discovery

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obligations ab initio.

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There is no

Further, public

Therefore, Plaintiff’s request for transcription of the

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audio-recorded interviews is also not well-taken.

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not originally request that the interviews be produced in a specific

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format, Defendants may produce the electronically-stored audio files

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as they have been maintained. Fed. R. Civ. P. 34(b)(2)(E); see also

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id., Advisory Committee Notes to 2006 Amendment, Subdivision (b).

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As there is no indication that Plaintiff originally requested hard

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copies of the electronically-stored interviews, the Court will not

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now compel Defendants to transcribe any interviews specifically for

13

If Plaintiff did

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Plaintiff in addition to production of the original audio files

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themselves.

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satisfied with production of the interviews in electronic format.

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By his own account, after he could not access the original CD, he

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was satisfied with production of converted audio files that would

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allow him to listen to the interviews on a portable CD player.4/

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Only recently did he request that Defendants produce transcribed

8

hard copies of the interviews.

By all accounts, up to this point, Plaintiff has been

9

The foregoing notwithstanding, to the extent that Defendants

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have in the past made transcripts of any Internal Affairs inter-

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views, those transcripts are within the broad range of discoverable

12

materials and must be produced if they have not already been

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produced.

14

therefore

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transcripts, but only to the extent that they currently exist and

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then only to the extent that any transcripts have not already been

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produced to date.

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exist, Defendants shall not be compelled to transcribe any inter-

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views for Plaintiff. Defendants are not responsible for Plaintiff’s

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inability to access electronic documents that are produced in a

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common format that makes such files accessible through widely-

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available computer programs.

See

Fed.

ordered

to

R.

Civ.

produce

P.

34(a)(1)(A).

any

Internal

Defendants
Affairs

interview

To the extent that transcripts do not currently

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24
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26
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28

4/

are

Because Plaintiff’s current request is not for additional converted
audio files, but for transcribed hard copies of the electronic
files, the Court does not address whether Defendants should produce
converted audio files. Plaintiff has not presented that issue to
the Court. However, if Plaintiff presents that issue in the future,
the Court is extremely unlikely to resolve it in his favor because,
again, he has not brought it to the Court’s attention in a timely
manner (i.e., in the present motion or previously), and it is simply
too late to do so given that final pretrial conference is to occur
in less than three weeks.
Moreover, the Court would deny the
request for the additional reason, as set forth herein, that
Defendants fulfilled their discovery obligations when they produced
the interviews in the .wav format.

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Finally, the Court denies Plaintiff’s demand that the

2

Internal Affairs witness statements be verified by the witnesses.

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As the Court understands Plaintiff’s demand, he wishes that the

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original witness verify his or her Internal Affairs statement even

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if that statement was not originally signed.

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tion of documents under Federal Rule of Civil Procedure 34 does not

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require verification in the same manner that interrogatory responses

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do. Compare Fed. R. Civ. P. 33(b)(5) (requiring verification by the

9

actual responding party), with Fed. R. Civ. P. 34 (no verification

10

requirement); see also William W Schwarzer et al., California

11

Practice Guide: Federal Civil Procedure Before Trial § 11:1924 (The

12

Rutter Group 2011) (“Verification not required:

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not be signed ‘under oath’ by the party to whom the request is

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directed.

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sign it, certifying that it is made in good faith.”).

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produced under Rule 34 are subject only to the general signature

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requirement in Federal Rule of Civil Procedure 26(g).

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the exception discussed below, Plaintiff is not entitled to verified

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responses to document requests in the same manner he is so entitled

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in the context of interrogatories.

However, the produc-

The response need

However, like all pleadings, the party’s attorney must
Documents

Subject to

21

The foregoing notwithstanding, if the witness statements were

22

originally signed by the witnesses, Plaintiff is clearly entitled to

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copies of the signatures as they appear on the original documents.

24

In other words, if the statements were originally signed, those

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signatures are part of the document itself, which must be produced

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as it is ordinarily kept in the course of business.

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34(b)(2)(E).

28

witness

Fed. R. Civ. P.

Here, however, Defendants have indicated that the

statements

are

unsigned

15

audio

recordings,

not

08CV1450

written

1

statements.

2

originally

3

verified response beyond what the Federal Rules of Civil Procedure

4

require.

5

E.

Therefore, since the source audio files were not
signed,

the

Court

denies

Plaintiff’s

demand

for

a

Production of Documents Referenced In Kluge’s Response to
Special Interrogatory 2

6
7

Finally,

Plaintiff

points

to

Kluge’s

use

of

the

word

8

“material” in his response to special interrogatory and requests

9

that Defendants be compelled to produce documents that this word

10

references.

11

Plaintiff’s request, “material” refers to those documents enumerated

12

in

13

documents (“RFP”) number 16.

14

requested that Defendants state whether the enumerated documents in

15

RFP 16 are also responsive to the word “material,” and Defendants

16

responded that they are responsive, (Doc. No. 95 at 2).

17

also asked whether the enumerated documents have been produced, and

18

Defendants

19

produced, (id.).

20

which

21

Procedure 11(b), and declines to order any further response.

22

/ / /

23

/ / /

24

/ / /

25

/ / /

26

/ / /

27

/ / /

28

/ / /

Kluge’s

have

(Doc. No. 92-1 at 10.)

response

responded

been

to

Plaintiff’s

that

As the Court understands

request

for

production

(See id. at ll. 6-10.)

any

documents

that

exist

of

The Court

The Court

have

been

The Court accepts Defendants’ representations,
signed

as

required

16

by

Federal

Rule

of

08CV1450

Civil

1

IV.

CONCLUSION

2

Plaintiff’s request is DENIED except as to any Internal

3

Affairs interview transcripts that presently exist and then only to

4

the extent that those transcripts have not been produced to date.

5

The parties shall prepare for the pretrial conference as ordered by

6

Judge Battaglia.

7

IT IS SO ORDERED.

8

DATED:

No more cutting bait; it’s high time to fish.

April 19, 2011

9
10
Hon. William V. Gallo
U.S. Magistrate Judge

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