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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JANE DOE,

Civil No.

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Plaintiff,

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v.

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THE CITY OF SAN DIEGO, et al.,

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Defendants.

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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]

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On April 12, 2013, the parties filed a Joint Motion for Determination of Discovery

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Dispute (“Joint Motion”) regarding Plaintiff Jane Doe’s amended notice of videotaped

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deposition of Defendant Anthony Arevalos. (ECF No. 90.) After a thorough review of the

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parties’ argument and evidence, the Court issues the following Order to resolve the issues

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in dispute.

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Plaintiff’s allegations in this case are well-known to the Court and the parties.

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Therefore, they will not be summarized at length in this Order. Suffice it to say that Plaintiff

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seeks to recover compensatory and punitive damages from the City of San Diego, its police

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department and several current and former police officers based on a March 8, 2011 sexual
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assault committed by one of the former officers, Defendant Anthony Arevalos. In November

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2011, Defendant Arevalos was convicted of multiple felony and misdemeanor counts arising

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out of on-duty sexual assaults of various female victims, including Plaintiff. Defendant

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Arevalos was sentenced to more than eight years in state prison, and he is currently

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incarcerated at the California Substance Abuse Treatment Facility and State Prison in

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Corcoran, California. Defendant Arevalos has appealed his criminal convictions and the

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appeal remains pending before the California Court of Appeal.

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The issues presently before the Court concern Plaintiff’s amended notice of

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videotaped deposition of Defendant Arevalos’ deposition. In Plaintiff’s April 3, 2013

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amended notice of videotaped deposition of Defendant Arevalos, Plaintiff noticed Defendant

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Arevalos’ deposition for May 20, 2013 at Corcoran State Prison. Defendant Arevalos

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objects to the deposition on several grounds, to which the City Defendants join.

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A.

Leave of Court Required

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First, Defendants contend that the deposition notice is defective because Plaintiff

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failed to comply with Federal Rule of Civil Procedure 30(a)(2)(B)’s requirement that a

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deposition of a prisoner may only be taken with leave of court, which Plaintiff has not

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previously obtained. Rule 30(a)(2)(B) plainly requires leave of court before the deposition

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of an incarcerated individual may be taken. However, the rule is silent as to whether leave

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of court must be obtained prior to the notice of deposition or prior to a party beginning to

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coordinate the deposition with the prison’s litigation coordinator. The Court need not decide

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these issues here. Plaintiff has, via the instant Joint Motion, sought leave of court to take

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Defendant Arevalos’ deposition. Moreover, the Court finds good cause to permit Plaintiff

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to take Defendant Arevalos’ deposition.1 That the deposition was noticed and arrangements

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were commenced with the prison’s litigation coordinator are insufficient grounds for denying

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Plaintiff the opportunity to depose Defendant Arevalos, particularly because now that leave

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of court has been obtained Plaintiff could simply re-notice the deposition for May 20, 2013.

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“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.)
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The Court does not believe such additional steps are necessary.

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B.

“Confidential” Designation of Deposition Transcript and Video

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Second, Defendants contend that the entire transcript and video of Defendant

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Arevalos’ deposition should be designated as “confidential” pursuant to the terms of the

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Court’s Protective Order in this case. (See ECF No. 83.) Defendant Arevalos bases his

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request to designate the deposition as “confidential” due to concerns regarding the effect that

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public disclosure of his deposition testimony might have on (1) his continued personal safety

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while incarcerated and (2) a potential retrial following his appeal of his criminal convictions.

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Plaintiff rejected Defendant Arevalos’ previous offer to stipulate to an order for the

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taking of his deposition if Plaintiff would stipulate to designate the deposition as “confiden-

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tial.” Plaintiff argues that Defendant Arevalos has no basis for claiming a “heightened

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privacy status” beyond those areas already covered by the Court’s Protective Order.

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However, the Protective Order expressly provides for “confidential” designation based upon

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a court order. (Id. at ¶ 1(b)(vi) (stating that the definition of “confidential” includes, among

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other things, “any other information deemed privileged or confidential pursuant to any State

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or Federal statute or regulation, or any court order.”) (emphasis added).)

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The Court agrees with Defendants that the entire transcript and video of Defendant

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Arevalos’ deposition should be designated as “confidential” under the Protective Order.

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Plaintiff has expressed an intent to question Defendant Arevalos about “his access to high-

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level leadership on the San Diego Police Department” (ECF No. 90 at 5:15-17) and “his

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relationships and communications with upper brass.” (Id. at 6:16-17.) The potential that

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responses to these lines of questioning may be publically disclosed, coupled with the fact that

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Defendant Arevalos is an imprisoned former police officer convicted of sexual assault

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crimes, raise concerns about possible retaliation against Defendant Arevalos and his

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continued safety while incarcerated.

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Moreover, given the continued media coverage of this case, public disclosure of

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Defendant Arevalos’ deposition testimony would create a substantial risk of tainting the

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potential jury pool for both the trial in this civil action as well as any potential retrial of the
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criminal charges.2

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Finally, the Court agrees with Defendants that designating the entire deposition as

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“confidential” will avoid forcing the parties to otherwise engage in what is likely to be a

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burdensome and unmanageable effort to designate numerous portions of the deposition as

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“confidential.”

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Plaintiff argues that designation of the deposition as “confidential” would impede or

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interfere with her ability to prepare the case for trial. The Court disagrees. As discussed

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above, Plaintiff is entitled to take Defendant Arevalos’ deposition. The fact that the

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deposition will be protected as “confidential” under the Protective Order does not impose

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limits on her ability to question Defendant Arevalos. It merely prevents subsequent public

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disclosure of the deposition testimony. While the Court understands the public’s interest in

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the outcome of this case, Plaintiff has no need to publically disclose the deposition testimony

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in order to prepare for trial. Importantly, the Court’s designation of the deposition as

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“confidential” does not prevent Plaintiff from later challenging the designation and seeking

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a court order re-designating the deposition transcript, or portions thereof, pursuant to

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Paragraph 11 of the Protective Order. In addition, the Court’s designation does not relieve

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any party from the requirement that leave of court be given prior to filing any documents

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under seal.

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In conclusion, pursuant to Federal Rule of Civil Procedure 26(c)(1), the Court finds

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that the entire transcript and videotape of Defendant Arevalos’ deposition shall be designated

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and treated as “confidential” under the terms of the Court’s prior Protective Order.

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C.

Sequence of Discovery

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Defendants contend that because Defendant Arevalos’ appeal of his criminal

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conviction remains pending, his deposition should be scheduled to occur near the close of

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Although both sides assert arguments regarding the scope of Defendant Arevalos’
Firth Amendment privilege against self incrimination and the manner in which he should
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“confidential” as a separate issue. Moreover, it is premature at this stage to decide the
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made.
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discovery after other depositions have occurred because if the parties are able to reach a

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settlement following these other depositions, his deposition will not be necessary, thereby

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avoiding potential issues due to his pending criminal appeal. Defendant Arevalos claims that

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he will otherwise be placed in an “untenable” and “oppressive” position.

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However, as recognized by District Judge Michael M. Anello when denying

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Defendants’ motion to stay, the possibility of a retrial of the criminal charges “appears

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remote,” and Defendant Arevalos’ Fifth Amendment rights are only minimally implicated

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in this case. (ECF No. 50 at 4:2-14.)

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Additionally, “[u]nless, on motion, the court orders otherwise for the parties’ and

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witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used

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in any sequence; and (B) discovery by one party does not require any other party to delay

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its discovery.” FED. R. CIV. P. 26(d)(2). The Court does not believe that the potential for

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settlement following the completion of other depositions constitutes good cause to postpone

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Defendant Arevalos’ deposition beyond the May 20, 2013 date upon which it has been

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noticed. The close of discovery, which was already extended once from May 17, 2013 to

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August 1, 2013 per the parties’ request (see ECF No. 73) is fast approaching. Moreover, the

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parties’ expert disclosures are due on June 14, 2013, less than one month after Defendant

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Arevalos’ scheduled deposition. (See id.) The Court agrees with Plaintiff that she should

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be entitled to take Defendant Arevalos’ deposition on the date noticed in the amended notice

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of deposition.

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D.

Court’s Availability on May 20, 2013

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Plaintiff has requested that the Court make itself availability on the date of Defendant

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Arevalos’ deposition in the event disputes arise during the course of the deposition. At the

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present time, the Court has two separate settlement conferences scheduled on May 20, 2013.

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However, the parties are encouraged to contact the Court during the deposition if the need

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arises, and the Court will attempt to make itself available. The parties shall comply with

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Section IV(B) of the undersigned’s Civil Chambers Rules.

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CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED:

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Good cause having been shown, the parties may depose Defendant Anthony

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Arevalos on May 20, 2013, beginning at 8:00 a.m., at the California Substance

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Abuse Treatment Facility and State Prison, 900 Quebec Avenue, Corcoran,

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California 93212. The deposition may be videotaped.

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2.

The entire transcript and videotape of Defendant Arevalos’ May 20, 2013

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videotaped deposition shall be designated as “confidential” pursuant to the

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Court’s March 8, 2013 Protective Order. (ECF No. 83.)

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IT IS SO ORDERED.
DATED: April 22, 2013

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DAVID H. BARTICK
United States Magistrate Judge

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12cv689-MMA (DHB)