Doe v. San Diego, City of et al

Filing 94

ORDER Resolving 90 Joint Motion for Determination of Discovery Dispute Re: Plaintiff Jane Doe's Amended Notice of Videotaped Deposition of Defendant Arevalos. It is hereby Ordered that the parties may depose Defendant Anthony Arevalos on 5/20 /2013, beginning at 8:00 AM at the California Substance Abuse Treatment Facility and State Prison. The Deposition may be videotaped. The entire transcript and videotape of Defendant Arevalos' 5/20/2013 videotaped deposition shall be designated as "confidential" pursuant to the Court's 3/8/2013 Protective Order. Signed by Magistrate Judge David H. Bartick on 4/22/2013. (leh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 JANE DOE, Civil No. 11 Plaintiff, 12 v. 13 14 THE CITY OF SAN DIEGO, et al., 15 Defendants. 16 12-cv-0689-MMA (DHB) ORDER RESOLVING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE RE PLAINTIFF JANE DOE’S AMENDED NOTICE OF VIDEOTAPED DEPOSITION OF DEFENDANT ANTHONY AREVALOS [ECF No. 90] 17 18 19 20 On April 12, 2013, the parties filed a Joint Motion for Determination of Discovery 21 Dispute (“Joint Motion”) regarding Plaintiff Jane Doe’s amended notice of videotaped 22 deposition of Defendant Anthony Arevalos. (ECF No. 90.) After a thorough review of the 23 parties’ argument and evidence, the Court issues the following Order to resolve the issues 24 in dispute. 25 Plaintiff’s allegations in this case are well-known to the Court and the parties. 26 Therefore, they will not be summarized at length in this Order. Suffice it to say that Plaintiff 27 seeks to recover compensatory and punitive damages from the City of San Diego, its police 28 department and several current and former police officers based on a March 8, 2011 sexual 12cv689-MMA (DHB) 1 assault committed by one of the former officers, Defendant Anthony Arevalos. In November 2 2011, Defendant Arevalos was convicted of multiple felony and misdemeanor counts arising 3 out of on-duty sexual assaults of various female victims, including Plaintiff. Defendant 4 Arevalos was sentenced to more than eight years in state prison, and he is currently 5 incarcerated at the California Substance Abuse Treatment Facility and State Prison in 6 Corcoran, California. Defendant Arevalos has appealed his criminal convictions and the 7 appeal remains pending before the California Court of Appeal. 8 The issues presently before the Court concern Plaintiff’s amended notice of 9 videotaped deposition of Defendant Arevalos’ deposition. In Plaintiff’s April 3, 2013 10 amended notice of videotaped deposition of Defendant Arevalos, Plaintiff noticed Defendant 11 Arevalos’ deposition for May 20, 2013 at Corcoran State Prison. Defendant Arevalos 12 objects to the deposition on several grounds, to which the City Defendants join. 13 A. Leave of Court Required 14 First, Defendants contend that the deposition notice is defective because Plaintiff 15 failed to comply with Federal Rule of Civil Procedure 30(a)(2)(B)’s requirement that a 16 deposition of a prisoner may only be taken with leave of court, which Plaintiff has not 17 previously obtained. Rule 30(a)(2)(B) plainly requires leave of court before the deposition 18 of an incarcerated individual may be taken. However, the rule is silent as to whether leave 19 of court must be obtained prior to the notice of deposition or prior to a party beginning to 20 coordinate the deposition with the prison’s litigation coordinator. The Court need not decide 21 these issues here. Plaintiff has, via the instant Joint Motion, sought leave of court to take 22 Defendant Arevalos’ deposition. Moreover, the Court finds good cause to permit Plaintiff 23 to take Defendant Arevalos’ deposition.1 That the deposition was noticed and arrangements 24 were commenced with the prison’s litigation coordinator are insufficient grounds for denying 25 Plaintiff the opportunity to depose Defendant Arevalos, particularly because now that leave 26 of court has been obtained Plaintiff could simply re-notice the deposition for May 20, 2013. 27 1 28 “Defendants do not dispute [Plaintiff’s] counsel’s right to depose the police officer who sexually molested Plaintiff [i.e., Defendant Arevalos].” (ECF No. 90 at 4:1113.) 2 12cv689-MMA (DHB) 1 The Court does not believe such additional steps are necessary. 2 B. “Confidential” Designation of Deposition Transcript and Video 3 Second, Defendants contend that the entire transcript and video of Defendant 4 Arevalos’ deposition should be designated as “confidential” pursuant to the terms of the 5 Court’s Protective Order in this case. (See ECF No. 83.) Defendant Arevalos bases his 6 request to designate the deposition as “confidential” due to concerns regarding the effect that 7 public disclosure of his deposition testimony might have on (1) his continued personal safety 8 while incarcerated and (2) a potential retrial following his appeal of his criminal convictions. 9 Plaintiff rejected Defendant Arevalos’ previous offer to stipulate to an order for the 10 taking of his deposition if Plaintiff would stipulate to designate the deposition as “confiden- 11 tial.” Plaintiff argues that Defendant Arevalos has no basis for claiming a “heightened 12 privacy status” beyond those areas already covered by the Court’s Protective Order. 13 However, the Protective Order expressly provides for “confidential” designation based upon 14 a court order. (Id. at ¶ 1(b)(vi) (stating that the definition of “confidential” includes, among 15 other things, “any other information deemed privileged or confidential pursuant to any State 16 or Federal statute or regulation, or any court order.”) (emphasis added).) 17 The Court agrees with Defendants that the entire transcript and video of Defendant 18 Arevalos’ deposition should be designated as “confidential” under the Protective Order. 19 Plaintiff has expressed an intent to question Defendant Arevalos about “his access to high- 20 level leadership on the San Diego Police Department” (ECF No. 90 at 5:15-17) and “his 21 relationships and communications with upper brass.” (Id. at 6:16-17.) The potential that 22 responses to these lines of questioning may be publically disclosed, coupled with the fact that 23 Defendant Arevalos is an imprisoned former police officer convicted of sexual assault 24 crimes, raise concerns about possible retaliation against Defendant Arevalos and his 25 continued safety while incarcerated. 26 Moreover, given the continued media coverage of this case, public disclosure of 27 Defendant Arevalos’ deposition testimony would create a substantial risk of tainting the 28 potential jury pool for both the trial in this civil action as well as any potential retrial of the 3 12cv689-MMA (DHB) 1 criminal charges.2 2 Finally, the Court agrees with Defendants that designating the entire deposition as 3 “confidential” will avoid forcing the parties to otherwise engage in what is likely to be a 4 burdensome and unmanageable effort to designate numerous portions of the deposition as 5 “confidential.” 6 Plaintiff argues that designation of the deposition as “confidential” would impede or 7 interfere with her ability to prepare the case for trial. The Court disagrees. As discussed 8 above, Plaintiff is entitled to take Defendant Arevalos’ deposition. The fact that the 9 deposition will be protected as “confidential” under the Protective Order does not impose 10 limits on her ability to question Defendant Arevalos. It merely prevents subsequent public 11 disclosure of the deposition testimony. While the Court understands the public’s interest in 12 the outcome of this case, Plaintiff has no need to publically disclose the deposition testimony 13 in order to prepare for trial. Importantly, the Court’s designation of the deposition as 14 “confidential” does not prevent Plaintiff from later challenging the designation and seeking 15 a court order re-designating the deposition transcript, or portions thereof, pursuant to 16 Paragraph 11 of the Protective Order. In addition, the Court’s designation does not relieve 17 any party from the requirement that leave of court be given prior to filing any documents 18 under seal. 19 In conclusion, pursuant to Federal Rule of Civil Procedure 26(c)(1), the Court finds 20 that the entire transcript and videotape of Defendant Arevalos’ deposition shall be designated 21 and treated as “confidential” under the terms of the Court’s prior Protective Order. 22 C. Sequence of Discovery 23 Defendants contend that because Defendant Arevalos’ appeal of his criminal 24 conviction remains pending, his deposition should be scheduled to occur near the close of 25 26 2 Although both sides assert arguments regarding the scope of Defendant Arevalos’ Firth Amendment privilege against self incrimination and the manner in which he should 27 claim that privilege, the Court views the issue of whether to designate the deposition as “confidential” as a separate issue. Moreover, it is premature at this stage to decide the 28 appropriateness of Fifth Amendment objections that Defendant Arevalos has not yet made. 4 12cv689-MMA (DHB) 1 discovery after other depositions have occurred because if the parties are able to reach a 2 settlement following these other depositions, his deposition will not be necessary, thereby 3 avoiding potential issues due to his pending criminal appeal. Defendant Arevalos claims that 4 he will otherwise be placed in an “untenable” and “oppressive” position. 5 However, as recognized by District Judge Michael M. Anello when denying 6 Defendants’ motion to stay, the possibility of a retrial of the criminal charges “appears 7 remote,” and Defendant Arevalos’ Fifth Amendment rights are only minimally implicated 8 in this case. (ECF No. 50 at 4:2-14.) 9 Additionally, “[u]nless, on motion, the court orders otherwise for the parties’ and 10 witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used 11 in any sequence; and (B) discovery by one party does not require any other party to delay 12 its discovery.” FED. R. CIV. P. 26(d)(2). The Court does not believe that the potential for 13 settlement following the completion of other depositions constitutes good cause to postpone 14 Defendant Arevalos’ deposition beyond the May 20, 2013 date upon which it has been 15 noticed. The close of discovery, which was already extended once from May 17, 2013 to 16 August 1, 2013 per the parties’ request (see ECF No. 73) is fast approaching. Moreover, the 17 parties’ expert disclosures are due on June 14, 2013, less than one month after Defendant 18 Arevalos’ scheduled deposition. (See id.) The Court agrees with Plaintiff that she should 19 be entitled to take Defendant Arevalos’ deposition on the date noticed in the amended notice 20 of deposition. 21 D. Court’s Availability on May 20, 2013 22 Plaintiff has requested that the Court make itself availability on the date of Defendant 23 Arevalos’ deposition in the event disputes arise during the course of the deposition. At the 24 present time, the Court has two separate settlement conferences scheduled on May 20, 2013. 25 However, the parties are encouraged to contact the Court during the deposition if the need 26 arises, and the Court will attempt to make itself available. The parties shall comply with 27 Section IV(B) of the undersigned’s Civil Chambers Rules. 28 /// 5 12cv689-MMA (DHB) CONCLUSION 1 2 Based on the foregoing, IT IS HEREBY ORDERED: 3 1. Good cause having been shown, the parties may depose Defendant Anthony 4 Arevalos on May 20, 2013, beginning at 8:00 a.m., at the California Substance 5 Abuse Treatment Facility and State Prison, 900 Quebec Avenue, Corcoran, 6 California 93212. The deposition may be videotaped. 7 2. The entire transcript and videotape of Defendant Arevalos’ May 20, 2013 8 videotaped deposition shall be designated as “confidential” pursuant to the 9 Court’s March 8, 2013 Protective Order. (ECF No. 83.) 10 11 IT IS SO ORDERED. DATED: April 22, 2013 12 DAVID H. BARTICK United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 12cv689-MMA (DHB)

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