Brown v. Gore et al

Filing 177

ORDER Granting In Part and Denying In Part 87 Plaintiff's Motion to Compel Discovery. Signed by Magistrate Judge Bernard G. Skomal on 3/5/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT MARK BROWN, II,

Civil
No.

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Plaintiff,

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ORDER GRANTING IN PART AND
DENYING IN PART
PLAINTIFF’S MOTION TO
COMPEL DISCOVERY

v.
DEPUTY #1, Deputy Sheriff; et al.,
Defendants.

[ECF No. 87.]

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12-cv-1938-GPC (BGS)

I. INTRODUCTION

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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983.

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Plaintiff’s First Amended Complaint, filed October 15, 2013, alleges various Eighth

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Amendment claims stemming from incidents of verbal harassment on April 21, 2012 and

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April 23, 2012 as well as an incident of excessive force on May 2, 2012. [ECF. No. 117.]

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On July 15, 2013, nunc pro tunc, July 9, 2013, Plaintiff filed a motion to compel discovery.

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[ECF. No. 87.] In the motion to compel, Plaintiff seeks: (1) further document production as

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to Requests for Production Nos. 1, 3, 4, 5, 6 and 7 of Plaintiff’s First Set of Requests for

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Production; (2) the production of documents as to all requests in Plaintiff’s Second Set of

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Requests for Production; and (3) further production of documents in response to Plaintiff’s

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May 17, 2013 service of five subpoenas on the “San Diego County Jails,” through the Legal

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Affairs Division of the Sheriff’s Department.
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The five subpoenas served by Plaintiff on the County of San Diego are the subject of

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a separate motion to quash filed by Defendants on June 28, 2013. [ECF No. 84.] The Court

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issued its order granting in part and denying in part Plaintiff’s subpoena requests on March

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4, 2014. [ECF No. 176.] Accordingly, Plaintiff’s duplicative request to compel production

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pursuant to subpoena is DENIED as MOOT. Plaintiff is hereby referred to the Court’s

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Order on Defendants’ motion to quash for the Court’s ruling on the five May 17, 2013

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subpoena requests. [Id. at 2:9-11:21.]

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As noted above, the remaining document requests at issue for purposes of the instant

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order are: (1) Requests for Production Nos. 1, 3, 4, 5, 6 and 7 of Plaintiff’s First Set of

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Requests for Production; and (2) all requests in Plaintiff’s Second Set of Requests for

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Production.

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II. STANDARD OF REVIEW

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“Generally, the purpose of discovery is to remove surprise from trial preparation so

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the parties can obtain evidence necessary to evaluate and resolve their dispute.” Moon v.

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SCP Pool Corp., 232 F.R.D. 633, 636 (C.D. Cal. 2005) (quoting Oakes v. Halvorson

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Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998)). Federal Rule of Civil Procedure

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26(b) permits production of unprivileged documents relevant to the claim or defense of

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any party. See Fed. R. Civ. P. 26(b)(1) (“Relevant information need not be admissible at

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trial if the discovery appears reasonably calculated to lead to the discovery of admissible

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evidence.”) Courts have interpreted this language very broadly to encourage discovery.

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Shoen v. Shoen, 5 F.3d 1289 (C.A.9 1993); See Geophysical Systems Corp. V. Raytheon

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Co., Inc., 117 F.R.D. 646, (C.D.Cal 1987). Specifically, Rule 34 allows a party to serve

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requests for the production of documents on any other party, so long as that request falls

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within the scope of Rule 26(b). See Fed. R. Civ. P 34(a). The party who has been served

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with a request for production must respond or object to each request in writing within

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thirty (30) days of being served. Fed. R. Civ. P 34(b)(2). The party opposing discovery

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has the burden of showing why discovery should not be allowed and must clarify, explain

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and support its objections. Duran v. Cisco Systems, Inc., 258 F.R.D. 375 (2009), citing
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Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential

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Ins. Co. Of Am., 233 F.R.D. 573, 575 (C.D.Cal. 2005).

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III. DISCUSSION

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A. Requests for Production Nos. 1, 3, 4, 5, 6 and 7 of Plaintiff’s First Set of

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Requests for Production (“RFP”)
1. Timeliness

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Defendants object to Plaintiff’s motion to compel further production in response to

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Plaintiff’s first set of RFPs on the ground that the motion was filed more than 30 days

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after Defendants served their written responses. [ECF No. 8:5-8.] The Court’s

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Scheduling Order, issued January 30, 2013, advises: “Absent advance notice from the

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Court, all discovery motions must be filed within 30 days of the service of an objection,

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answer or response which become the subject of dispute.” [ECF No. 39 at 2:2-4.] Here,

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Plaintiff served his RFPs by mail on February 28, 2013. Defendants responded in writing

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with objections, responses and responsive documents on April 2, 2013. Defendants

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produced additional documents on April 12, 2013. Plaintiff did not file his motion to

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compel until July 9, 2013, which is more than two months after the 30-day filing deadline

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set forth in the Scheduling Order. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987) (“Pro

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se litigants must follow the same rules of procedure that govern other litigants.”)

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Plaintiff’s motion to compel was filed more than 60 days after May 2, 2013, which was

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the deadline set by the Court for the filing of a motion to compel with respect to

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Defendants’ production. Even if the Court were to use the supplemental production date

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of April 12, 2013 day as the trigger for the 30-day discovery motion filing deadline,

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Plaintiff’s motion to compel was still more than 45 days late.
2. Merits of Plaintiff’s Requests for Production, Set One

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Untimeliness notwithstanding, the Court also DENIES IN PART Plaintiff’s

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motion to compel on the merits for issues of overbreadth, irrelevance and privacy as

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explained in detail below:

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RFP No. 1 - “All documents that contain, mention, construe, or refer to policies on

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staff supervision of inmates at the Detention Center.”
In their opposition to the motion to compel, Defendants argue Plaintiff’s motion

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must be denied as to this request because Defendants have already produced use-of-force

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policies for the George Bailey Detention Center including: Manual of Policies and

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Procedures No. I-89 (Use of Force); 0.3 (Inmate Rules and Regulations); San Diego

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County Sheriff’s Department Procedure Section 2.49 and 6.48; Addendum Section F

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(Use of Force Guidelines); SDSD Detention Services Bureau - George Bailey Detention

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Facility Green Sheet I.89.G (Use of Force) and 0.3.G (Facility Specific Inmate Rules and

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Regulations. (ECF No. 99 at 8:23-9:6.) Defendants also note Plaintiff has not alerted the

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Court to any other relevant policies he seeks. (See e.g. Grabek v. Dickinson, 2012 WL

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113799, at *1 (E.D.Cal. Jan.13, 2012); Womack v. Virga, 2011 WL 6703958, at *3

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(E.D.Cal. Dec.21, 2011); Mitchell v. Felker, 2010 WL 3835765, at *2 (E.D.Cal. Sep.29,

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2010); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D.Cal. Mar.27, 2008) (requiring the

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moving party, once objections were made, to inform the Court for each disputed

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response, why the information sought is relevant and why the responding party's

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objections are not meritorious.)
Given the use-of-force allegations in his First Amended Complaint, the

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Defendants’ production of use-of-force policies as well as general rules and regulations is

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responsive to Plaintiff’s request. No further production appears to be required based on

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the circumstances presented, although each party is hereby advised that they are under a

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continuing obligation to supplement responses to requests for production of documents if

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either discovers or obtains additional, relevant information. Fed.R.Civ.P. 26(e).

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Plaintiff’s motion to compel further production in response to RFP No. 1 is DENIED.

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RFP No. 3 - “The complete contents of plaintiff’s detection [sic] center file,

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including but not limited to disciplinary reports, incident reports, evaluations,

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criminal justice information, use of force reports, and medical and mental health

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records. ”

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In their opposition, Defendants argue Plaintiff’s request is overbroad as to time and

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scope and unduly burdensome because Plaintiff has been incarcerated numerous times

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over the course of many years. Defendants add that notwithstanding those objections,

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they produced booking records for Plaintiff’s November 3, 2011 arrest, prison grievances

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from November 2011 to the present, incident reports for all three events that are the

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subject of Plaintiff’s complaint, photographs of Plaintiff from May 2, 2012 and all of

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Plaintiff’s medical records that could be located.

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The Court sustains Defendants’ objection. The request is unduly overbroad;

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documents spanning all periods of Plaintiff’s incarceration are not calculated to lead to

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the discovery of admissible evidence as to the three incidents at issue here, which

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occurred in 2012. No further production appears to be required based on the

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circumstances presented. Plaintiff’s motion to compel further production in response to

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RFP No. 3 is DENIED.

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RFP No. 4 - “All other documents, items if [sic] evidence, or sworn or unsworn
statements or affidavits that relate to the allegation made in plaintiff’s complaint.”
Defendants object to Plaintiff’s motion to compel further documents in response to

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RFP No. 4 on the ground that they have already produced all reports which address the

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incidents that form the basis of Plaintiff’s complaint. Again, they note Plaintiff has not

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indicated what more he seeks.

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The Court sustains Defendants’ objection. No further production appears to be

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required based on the circumstances presented, although the Court reminds the parties of

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the continuing obligation to supplement responses under Rule 26(e). If a party fails to

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supplement, “the party is not allowed to use that information ... to supply evidence on a

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motion, at a hearing, or at trial, unless the failure was substantially justified or is
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harmless.” See Fed. R. Civ. P. 37c(1). Plaintiff’s motion to compel further production in

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response to RFP No. 4 is DENIED.

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RFP No. 5 - “All documents that contain, mention, construe or refer to any

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insurance agreement or arrangement according to which an insurance company or

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other person or entity will guaranty, act as a surety for, or otherwise bear and [sic]

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responsibility for litigating this action, including, but not limited to paying the

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defendants’ attorney’s fees, costs, or out-of-pocket expenses, or paying for any

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monetary or injunctive relief ordered as part of a court or consent judgment.”

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Defendants objected to this RFP on relevance grounds and argue in their

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opposition brief that there are no responsive documents of which they are aware.

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The Court sustains the objection. Rule 26(b)(1) allows discovery of

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“nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.

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26(b)(1). Insurance agreements or arrangements have no apparent bearing on Plaintiff’s

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eighth amendment claims. Moreover, even if the relevance of this request was not

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questionable, this court cannot compel Defendants to produce documents that do not exist

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or are not in Defendants’ possession or control. Manning v. General Motors, 247 F.R.D.

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646, 652 (D. Kan. 2007). Defendants have indicated that there are no responsive

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documents to produce. Accordingly, Plaintiff’s motion to compel further production in

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response to RFP No. 5 is DENIED.

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RFP No. 6 - “All video surveillance of House 3 inside and out and also Module

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3B inside and out from the dates and times of April 23, 2012, from 10:00 a.m.-12:00

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noon, and May 2, 2012, from 8:00 a.m.-10:00 a.m.”

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This request is duplicative of a subpoena requesting the same information, which is

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the subject of a separate motion to quash filed by Defendants on June 28, 2013. [ECF No.

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84.] The Court issued its order granting in part and denying in part Plaintiff’s subpoena

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requests on March 4, 2014. [ECF No. 176.] Accordingly, Plaintiff’s duplicative request

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to compel further production in response to RFP No. 6 is DENIED as MOOT. Plaintiff

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is hereby referred to the Court’s Order on Defendants’ motion to quash for the Court’s
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ruling on the May 17, 2013 subpoena requests. [Id. at 8-9.]
RFP No. 7 - “The Deputy signs on duty roster sheet for April 21, 23, 2012, and

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May 2, 2012.”
In their opposition to the motion to compel, Defendants have informed the court

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that they: (1) produced redacted duty rosters for April 21, 2012 and May 2, 2012; (2) and

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withheld the duty roster for April 23, 2012 because Plaintiff had already identified

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Defendant Villareal as the deputy alleged to be involved in the April 23, 2012 incident.

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At the time responses were served, Defendants objected to RFP No. 7 on the ground that

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it sought documents outside of their possession and on relevance grounds. Defendants’

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objections are overruled. The duty rosters are clearly under Defendant’s control given

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the earlier production of the redacted April 21, 2012 and May 2, 2012 rosters to Plaintiff.

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In addition, the rosters are relevant, not only to show potential Defendants, but also to

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show possible witnesses to the incident on April 23, 2012. Accordingly, the Court

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ORDERS Defendants to provide Plaintiff with a copy of the April 23, 2012 duty roster

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no later than March 24, 2014.

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B. Requests for Production Nos. 1 through 10 of Plaintiff’s Second Set of

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Requests for Production

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The timeliness of Plaintiff’s motion to compel responses to Plaintiff’s Second Set

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of Requests for Production is not at issue. Defendant served written objections and

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responses to the second set of Plaintiff’s requests for production on June 26, 2013. As

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noted above, Plaintiff’s motion to compel was filed nunc pro tunc on July 9, 2014, well

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within the 30-day discovery motion deadline. The Court will address the merits of

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Plaintiff’s second set of RFPs and the adequacy of Defendants’ objections in detail

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below:

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RFP No. 1 - “All documents or reports that contain, mention, construe, or

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refer to racial prejudice, dishonesty, the fabrication of or change evidence, any act

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involving morally lax character, unnecessary acts of aggressive behavior, acts of

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violence and/or attempted violence, discriminatory remarks or actions against

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homosexuals, any acts of excessive force and/or attempted excessive force by any

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and all deputy sheriffs at George Bailey Detention Facility within the last 10 years.”

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In their opposition brief and in responses to Plaintiff’s requests, Defendants object

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on the grounds that RFP No. 1 is overbroad as to time and scope and unduly burdensome

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due to the expansive nature of this inquiry. Defendants also challenge the relevance of

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Plaintiff’s wide-ranging request and note its broad categories may open the door to

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various privilege violations. The Court agrees. As explained in its discussion of

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Plaintiff’s first set of requests for production, Rule 26(b)(1) allows discovery of

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“nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P.

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26(b)(1)(italics added). Plaintiff’s First Amended Complaint “FAC” alleges eighth

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amendment violations for use of excessive force and deliberate indifference to medical

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needs; however, RFP No. 1 seeks to discover documents and reports on numerous other

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unrelated categories as to any and all deputy sheriffs over a 10-year period. [ECF No.

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117.] Accordingly, Defendants objections are sustained. The request is overbroad not

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only because of the unlimited subject matter, but because it seeks information as to any

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and all sheriffs regardless of their participation in the incidents alleged in the FAC and

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spans a 10-year period when the incidents at issue in this case occurred in 2012 and

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Plaintiff was admitted to the facility in November of 2011. The request is not tailored to

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lead to the discovery of admissible evidence. Plaintiff s motion to compel a response to

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RFP No. 1 of the second set of Plaintiff’s requests for production is DENIED.

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RFP No. 2 - “All statements, written or oral, persons who have brought

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complaints as described in No. 1 above.”

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RFP No. 3 - “The names, addresses, and telephone numbers of all persons

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interviewed by the Sheriff’s Department , its investigators and other personal

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(sic) during investigations into complaints as described in items No. 1 and No.

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2 above by the above-named officers.

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RFP No. 4 - “All statements, written or oral, made by persons interviewed by

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the sheriff department, its investigators and other personnel during

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investigation into complaints as described in No. 3 above.”

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RFP No. 5 - “All tape recordings and/or transcriptions thereof and notes and

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memoranda by investigation personal (sic) of the sheriff department pursuant

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to investigation described in items 1 and 3 above.”

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RFP No. 6 - “The names and assignments of investigators and other personal

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(sic) employed by the sheriff department as described in items 1 and 3 above.”

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Plaintiff s motion to compel responses to RFP Nos. two through six of the second

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set of Plaintiff’s requests for production is DENIED. These requests refer back to

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impermissibly overbroad Request No. 1 and are not tailored to lead to the discovery of

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admissible evidence.

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RFP No. 7 - “The written procedures established by the sheriff department to
investigate citizen’s complaints against the department personnel.”
Defendants objected to this RFP on grounds that it is: (1) vague and ambiguous;

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and (2) not relevant to any party’s claim or defense as required under Rule 26(b)(1).

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Defendants’ objections are sustained. The facts alleged in Plaintiff’s First Amended
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Complaint do not implicate “citizens’ complaints”. Accordingly, Plaintiff’s request is not

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relevant to any party’s claim or defense. To the extent Plaintiff includes his prison

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grievances in the definition of the phrase “citizens’ complaint”, he has already received

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copies of his prison grievances from November 2011 to the present as well as the incident

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reports for the three events at issue in this lawsuit. Plaintiff s motion to compel a response

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to RFP No. 7 of the second set of Plaintiff’s requests for production is DENIED.

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RFP No. 8 - All records of the department concerning records of statements,

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reputations and opinions including, but not limited to, findings, letters, formal

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reports, and oral conversations made by superior officers and other officers of all

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the named deputy sheriffs: Erick Villareal #3997, Scott Henton #3002, Jason Weber

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#7313, Robert Pierson #3041, Lauset Garcia #3066, L. Whittaker #7137, Michael

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Lawson #4209.

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Plaintiff’s Request No. 8 mirrors Plaintiff’s Subpoena Request No. 2, which was

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addressed by this Court’s Order GRANTING IN PART and DENYING IN PART

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Defendants’ June 28, 2013 Motion to Quash, in that it seeks the employment and

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personnel files of the officers named as defendants in this case. [See ECF No. 176 at

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8:13-9:7.] Accordingly, Plaintiff’s motion to compel a response to RFP No. 8 is

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DENIED as moot. The Court refers the parties to the Court’s March 4, 2014 Order for

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further direction as to the review and potential production of the employment records

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requested. [Id. at 14:10-25.]

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RFP No. 9 - “All records of discipline imposed by the Sheriff Dept. On the
above named Deputy Sheriff(s) for conduct specified in items 1 and 8 above.”

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Plaintiff s motion to compel a response to RFP No. 9 is DENIED. This request

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refers back to impermissibly overbroad Request No. 1 and is not tailored to lead to the

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discovery of admissible evidence. Moreover, to the extent Plaintiff seeks information

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typically found in employment files, the request is also DENIED as moot. As explained

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above, the Court has issued a ruling addressing the production of employment records in

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its March 4, 2014 Order and provided further direction for the parties regarding the
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potential production of employment records. [See ECF No. 176 at14:10-25.]
RFP No. 10 - “Any emails, notes, letters, statements, relating to the incidents
below between staff: (1) April 21, 2012; (2) April 23, 2012; and (3) May 2, 2012.”
Defendants object to Plaintiff’s motion to compel further documents in response to

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RFP No. 10 arguing they have already produced all reports which address the three

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incidents that form the basis of Plaintiff’s complaint.

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The Court sustains Defendants’ objection. No further production appears to be

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required based on the circumstances presented, although the Court reminds the parties of

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the continuing obligation to supplement responses under Rule 26(e). If a party fails to

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supplement, “the party is not allowed to use that information ... to supply evidence on a

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motion, at a hearing, or at trial, unless the failure was substantially justified or is

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harmless.” See Fed. R. Civ. P. 37c(1). Plaintiff’s motion to compel production in

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response to RFP No. 10 is DENIED.

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IV. CONCLUSION

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For the reasons addressed above, Plaintiff’s Motion to Compel is GRANTED IN
PART AND DENIED IN PART as follows:
1. Defendants shall provide Plaintiff with a copy of the April 23, 2012 duty

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roster in response to RFP No. 7 of the First Set of Requests for Production no later than

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March 24, 2014; and

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2. Plaintiff’s remaining RFP Nos. 1, 3, 4, 5, and 6 and RFP Nos. 1 -10

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found in Plaintiff’s First Set and Second Set of Requests for Production respectively are

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DENIED as directed in the instant Order.

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IT IS SO ORDERED.
DATED: March 5, 2014

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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