Davis et al v. Zimmerman et al

Filing 104

ORDER on 100 Joint Motion for Determination of Discovery Dispute No. 2. Court grants in part and denies in part Plaintiff's motion to compel. Defendants are to provide answers to Requests for Admission Nos. 21, 22, and 23 within 14 days of this Order. The motion to compel is denied as to all other requests. Signed by Magistrate Judge Nita L. Stormes on 5/20/2019. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAIRO RAMIREZ, et al.,

Lead Case No.: 3:17-cv-1230-BAS-NLS
Consolidated with: 18-cv1062-BAS-NLS

Plaintiff,

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v.

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SAN DIEGO POLICE CHIEF SHELLY
ZIMMERMAN, et al.,

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ORDER ON DISCOVERY DISPUTE
NO. 2
[ECF No. 100]

Defendants.

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Before the court is the Joint Motion for Determination of Discovery Dispute No. 2

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between plaintiff in the consolidated action, Bryan Pease (“Plaintiff”), and defendants

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City of San Diego and San Diego Police Chief Shelly Zimmerman, Christopher Bernard,

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Brett Crawford, Curtis Doll, Christopher Lingenhol, Arturo Morales, Jr., Nathan Parga,

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Ricky M. Radasa, Michael Rojas, Jonathan Wells, Franklin White, Kyle Williams, and

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Jeff Willkomm (collectively “City” or “Defendants”). ECF No. 100. Plaintiff Pease

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moves to compel documents responsive to 49 requests. ECF No. 100-2. As explained

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below, the court will GRANT IN PART AND DENY IN PART the motion to compel.

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I.

BACKGROUND
This case arises from arrests made near the San Diego Convention Center

following a rally for and protest against then presidential candidate Trump. Plaintiff
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alleges a Monell claim and that his arrest was unlawful, violating his First and Fourth

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Amendment rights. See ECF No. 89. Plaintiff’s case was consolidated with the case he

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brought as counsel for four other attendees at the rally (now Ramirez; formerly

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Cervantes), alleging the same claims.1 See ECF Nos. 68, 89. Following the

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consolidation, the parties submitted a joint discovery plan, the Court held a case

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management conference, and issued a Consolidated Scheduling Order. ECF Nos. 72 -74.

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The Consolidated Scheduling Order affirmed that discovery in the Ramirez remained

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closed; and that “[f]act discovery limited to Plaintiff Pease’s claims shall be completed

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by all parties by April 19, 2019.” ECF No. 74.

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Plaintiff propounded interrogatories, requests for admissions, and requests for

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production to the City Defendants. See ECF No. 87. The City served unverified

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responses on February 11, 2019. Id. The parties began the meet and confer process, but

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due to a previously scheduled trial, requested and were granted an extension of time to

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file this discovery dispute. ECF No. 88.

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The dispute now before the Court presents 49 individual requests and two over-

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arching arguments regarding (1) Plaintiff Pease’s propounded discovery regarding acts or

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threats of violence leading up to the declaration of unlawful assembly in body worn

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camera (“body cam”) footage, and (2) the City’s redacted after-action report. See ECF

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Nos. 100, 100-1. Plaintiff also seeks attorney fees incurred in compelling City

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Defendants’ responses. ECF No. 100-1 at 4.

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II.

LEGAL STANDARDS
Rule 26 permits discovery of “any nonprivileged matter that is relevant to any

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party’s claim or defense and proportional to the needs of the case, considering the

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importance of the issues at stake in the action, the amount in controversy, the parties’

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Plaintiff Pease and the Ramirez plaintiffs both bring Monell and §1983 claims based on violation of the
First and Fourth Amendments. The remaining claims of the consolidated complaint are alleged by the
Ramirez plaintiffs only.
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relative access to relevant information, the parties’ resources, the importance of the

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discovery in resolving the issues, and whether the burden or expense of the proposed

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discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information need not

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be admissible to be discoverable. Id. Once the propounding party establishes that the

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request seeks relevant information, “[t]he party who resists discovery has the burden to

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show discovery should not be allowed, and has the burden of clarifying, explaining, and

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supporting its objections.” Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217

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(C.D. Cal. 2009); see Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)

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(requiring defendants “to carry heavy burden of showing why discovery was denied”).

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“The 2015 amendments to Rule 26(b)(1) emphasize the need to impose ‘reasonable

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limits on discovery through increased reliance on the common-sense concept of

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proportionality.’” Roberts v. Clark County Sch. Dist., 312 F.R.D. 594, 603 (D. Nev.

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2016). The fundamental principle of amended Rule 26(b)(1) is “that lawyers must size

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and shape their discovery requests to the requisites of a case.” Id. Discovery and Rule

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26 is intended to provide parties with “efficient access to what is needed to prove a claim

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or defense, but eliminate unnecessary or wasteful discovery.” Id. This requires active

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involvement of federal judges to make decisions regarding the scope of discovery. Id.

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To the extent that the discovery sought is “unreasonably cumulative or duplicative,

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or is obtainable from some other source that is more convenient, less burdensome, or less

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expensive,” the court is directed to limit the scope of the request. Fed. R. Civ. P. 26(b)(2).

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Limits should also be imposed where the burden or expense outweighs the likely benefits.

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Id. How and when to so limit discovery, or to “issue an order to protect a party or person

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from annoyance, embarrassment, oppression, or undue burden or expense,” remains in

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the court’s discretion. Fed. R. Civ. P. 26(c)(1).

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III.

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DISCUSSION

The discovery propounded by Plaintiff to the City appears to mirror the discovery

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propounded to the County and previously addressed in Discovery Dispute No. 1.2 The

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Court sees no reason that the rulings on identical discovery requests should differ when

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propounded to the City as opposed to the County. Accordingly, analysis is incorporated

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and quoted from the Court’s prior order. See ECF No. 103 at 4-6. To the extent the

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parties raise disputes over specific requests that did not arise in Discovery Dispute No. 1,

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but to which the same analysis applies, the requests are decided together as identified.

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Additional arguments specifically raised by these parties regarding body cam footage and

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the unredacted after action report are addressed subsequently, and finally, the few

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remaining individual requests are adjudicated.

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A. Requests Identical to those Propounded to the County

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1. Plaintiff had Ample Opportunity to Obtain Information

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Federal Rule of Civil Procedure 26 “vests the trial judge with broad
discretion to tailor discovery narrowly and to dictate the sequence of
discovery.” Crawford-El v. Britton, 523 U.S. 574, 598 (1998). The Court
“must limit the frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that: . . . the party seeking discovery
has had ample opportunity to obtain the information by discovery in the
action[.]” Fed. R. Civ. P. 26(b)(2)(C)(ii).
Here, the Court finds that Plaintiff had ample opportunity to obtain
much of the information he seeks in his discovery requests. Plaintiff acts as
counsel for the plaintiffs in the Ramirez matter, and has since the inception
of the case. ECF No. 1 at 1, 9. Plaintiff’s current claims have been, and
continue to be, identical to the Ramirez plaintiffs’ claims. Compare ECF
No. 38 with ECF No. 1 (18-cv-1062).3 To the extent there are distinctions

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The following discovery requests were identically propounded to both the City and County and raised
in the discovery disputes before the Court: Interrogatories: 1- 10,13-17; Requests for Admission: 1-10,
14-19, 25; and Requests for Production: 2, 4-10, 20.
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The factual underpinnings and many allegations are either identical or substantially similar. Compare
ECF No. 38 at ¶ 59 with ECF No. 1 (18-cv-1062) (“Pease Complaint”) at ¶ 13. Compare ECF No. 38 at
¶ 60 with Pease Complaint at ¶ 14. Compare ECF No. 38 at ¶ 61 with Pease Complaint at ¶ 15.
Compare ECF No. 38 at ¶ 63 with Pease Complaint at ¶ 16. Compare ECF No. 38 at ¶ 64 with Pease
Complaint at ¶ 17. Compare ECF No. 38 at ¶ 65 with Pease Complaint at ¶ 18. Compare ECF No. 38 at
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between the claims alleged by Plaintiff and those of the Ramirez plaintiffs in
the consolidated complaint, the causes of action alleged by the Ramirez
plaintiffs exceed those alleged by Plaintiff. Plaintiff’s only two claims are
entirely subsumed by and identical to the claims currently—and
previously—alleged by the Ramirez plaintiffs.
Discovery proceeded in the Ramirez case for over a year. As
counsel, Plaintiff was an active participant in the discovery process.
Plaintiff also assured the Court that “[t]he parties do not intend to duplicate
any discovery and can combine the discovery in the two cases.” ECF No. 61
(Response to OSC) at 4. Plaintiff contended that “discovery produced in one
lawsuit can be used in subsequent litigation . . . . Surely, the parties can
stipulate that discovery responded to in the [lead] case is admissible in Pease
v. Gore to the extent that it is relevant and non-objectionable.” ECF No. 61
at 9. Plaintiff further explained that “extensive discovery has already
occurred in the [lead] case, and Pease’s attorney is intending to rely on the
previous discovery[.]” ECF No. 61 at 10.
A year of fact discovery for a case with identical allegations, for
which Plaintiff controlled the discovery, constitutes an “ample opportunity”
to obtain information. In addition to the amount of time permitted, Plaintiff
himself refers to the discovery conducted as “extensive” and stated his
intention to use the discovery from Ramirez for identical allegations of his
own case. Thus, the Court finds Plaintiff had ample opportunity within the
meaning of Rule 26(b)(2)(C)(ii).
Where a party has had ample opportunity to obtain information, to
continue the pursuit of discovery the party generally must demonstrate to the
court why the additional discovery is necessary and/or why it was not
previously obtainable. For example, in seeking additional depositions
beyond the presumptive limit the party seeking additional depositions must
make a “particularized showing of the need.” See Olivo v. Fresh Harvest
Inc., No. 17-CV-2153-L-WVG, 2018 WL 4927995, at *4 (S.D. Cal. Oct. 10,
2018) (denying additional depositions in the absence of a particularized
showing of need in light of ample opportunity to obtain the information).
Similarly, courts often consider whether the information could have been
obtained from another source. See Amini Innovation Corp. v. McFerran

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¶ 68 with Pease Complaint at ¶ 20. Compare ECF No. 38 at ¶ 69 with Pease Complaint at ¶ 21.
Compare ECF No. 38 at ¶ 70 with Pease Complaint at ¶ 22. Compare ECF No. 38 at ¶ 71 with Pease
Complaint at ¶¶ 23-24. Compare ECF No. 38 at ¶ 72 with Pease Complaint at ¶ 24. Compare ECF No.
38 at ¶ 73 with Pease Complaint at ¶ 75. Compare ECF No. 38 at ¶ 105 with Pease Complaint at ¶ 29.
Compare ECF No. 38 at ¶¶ 10, 124 with Pease Complaint at ¶ 31. Compare ECF No. 38 at ¶ 138 with
Pease Complaint at ¶ 32.
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Home Furnishings, Inc., 300 F.R.D. 406, 412 n.6 (C.D. Cal. 2014) (quashing
Rule 45 subpoena because party had ample opportunity to pursue discovery
and could not show “that it could not have obtained the requested
information from party witnesses”); Trunk v. City of San Diego, 06 CV 1597
BTM (WMC), 2007 WL 1110715, at *7 (S.D. Cal. Apr. 2, 2007) (denying
deposition because “…Plaintiff has not demonstrated that the Mayor's
anticipated testimony is unavailable through other sources or less
burdensome avenues….”); see also Eclipse Grp. LLP v. Target Corp., No.
15cv1411-JLS (BLM), 2017 WL 2231316, at *2 (S.D. Cal. May 19, 2017)
(noting “[d]istrict courts also have broad discretion to limit discovery to
prevent its abuse”).
Plaintiff does not offer any reasons that the discovery he seeks is
necessary only now or that it was unobtainable during the prior fact
discovery. To the contrary, all indications are the requested information
could have been obtained by other means, specifically, by timely sending the
written requests during the year in which fact discovery was open for the
same claims. Plaintiff does not make “a particularized showing that there is
a need for” the information he seeks, most of which appears to target the
declaration of unlawful assembly—a claim that was made in every iteration
of the Ramirez case.4 The court also notes that most of the interrogatories
and requests for admissions do not seek information regarding the
“underlying basis for Plaintiff’s arrest” category as Plaintiff attests.

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ECF No. 103 at 4-6.

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As with the discovery propounded to the County, Plaintiff issues broad requests to

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the City that attempt to deduce information for all plaintiffs in the consolidated case,

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which is beyond the bounds of presently available discovery.5 Compare ECF No. 74 at

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1-2 (closing fact discovery for the Ramirez case and permitting only discovery “limited to

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Plaintiff Pease’s claims”) with ECF No. 91-1 (Joint Statement).” Plaintiff provides no

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See ECF No. 1 at ¶ 18; ECF No. 25 at ¶¶ 5, 66; ECF No. 38 at ¶¶ 2, 8, 61; ECF No. 89 at ¶¶ 2, 10, 32;
and 18cv1062 ECF No. 1 at ¶ 15.
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For example, as a broad cross-section, Plaintiff Pease propounded questions such as: (1) “IDENTIFY
with specificity each incident during the RALLY that YOU believe demonstrates that the assembly was
unlawful within the meaning of Penal Code section 407,” (2) “Admit that YOU do not have any video
taken by law enforcement that demonstrates wide-spread violence at the RALLY,” and (3) “Admit that
YOUR plan was to allow Trump supporters to disperse to the North of the Convention Center.” ECF
No. 100-2 at 2, 14, 22. These requests are not limited to the circumstances of Plaintiff’s arrest, and
instead target information applicable to all Ramirez plaintiffs.
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explanation as to why this discovery was previously unavailable, or that the discovery is

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particularly necessary now, or that the circumstances for his own arrest are distinct from

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the Ramirez plaintiffs to pursue this discovery. To the contrary, most of the discovery

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seeks information about widespread violence or the threat thereof. ECF No. 100-2.

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Responses to these requests are no more germane to discovery for Plaintiff than the

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Ramirez plaintiffs, and so information regarding the designation should have been

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requested in the now-closed discovery of the lead case. Cf. Bovarie v. Schwarzenegger,

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No. 08cv1661 LAB (NLS), 2011 WL 767249, at *7 (S.D. Cal. Feb. 25, 2011) (refusing to

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extend discovery deadline where “the discovery Plaintiff now seeks was foreseeable

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earlier in the litigation and should have been requested by now”).
As before, Plaintiff had “ample opportunity” to gather information in discovery

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and fails to show any special circumstances that render additional discovery necessary or

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show the information was previously unavailable or specific to Plaintiff’s arrest apart

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from the Ramirez plaintiffs. Pursuant to Rule 26, the Court may properly limit discovery.

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On this basis, the Plaintiff’s motion to compel further responses is DENIED as to the

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following requests:

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Interrogatories: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10.

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Requests for Admission: 1, 2, 3, 6, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 25.

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Requests for Production: 1, 2, 3, 4, 5, 6, 7, 10, 20.

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2. Other Identical Requests
Interrogatories 13 and 14 ask Defendants to “IDENTIFY each and every

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DOCUMENT YOU intend to submit as evidence at trial” and then to identify the person

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who will authenticate each document. ECF No. 100-2 at 34-36. These requests are

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identical to the ones propounded to the County and previously addressed. As before,

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Plaintiff’s motion to compel is DENIED.

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The motion to compel further responses to these interrogatories boils down to a

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premature request for an exhibit list and witness list. Plaintiff is not entitled to these

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documents at this stage of the litigation. See CivLR 16.1(f); ECF No. 74. Further,
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Plaintiff’s argument that further response is necessary to identify documents intended to

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be used as “pure impeachment” evidence contravenes the plain language of Rule 26.

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Fed. R. Civ. P. 26(a)(1)(A), (3)(A) (“In addition to the disclosures required by Rule

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26(a)(1) and (2), a party must provide to the other parties and promptly file the following

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information about the evidence that it may present at trial other than solely for

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impeachment[.]”).

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Requests for Admission 4 and 5 ask Defendants to “Admit that at the time that

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BRYAN PEASE was arrested, there was [4] no evidence of widespread violence [and 5]

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no evidence of the imminent threat of widespread violence within two city blocks of

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BRYAN PEASE.” These requests are identical to the ones propounded to the County

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and previously addressed. As before, Plaintiff’s motion to compel is DENIED.

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The Court does not find these requests seek relevant information to the claims and

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defenses and are therefore beyond the bounds of Rule 26. Plaintiff was arrested for

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failure to disperse after an unlawful assembly had been declared. See ECF No. 100 at 6.

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The Fourth Amended Complaint makes clear that Plaintiff was arrested after the

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declaration of unlawful assembly. ECF No. 89 at ¶¶ 2, 11, 12. Acts of violence or the

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imminent threat thereof in the time leading up to the declaration of unlawful assembly

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may be relevant to the declaration of unlawful assembly. But this request seeks evidence

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of violence occurring after the declaration at the time of Plaintiff’s arrest. Whether or not

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there were still acts of violence occurring after the declaration of unlawful assembly, or

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within two blocks of Plaintiff’s arrest, is not relevant to the claims alleged and so, the

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motion to compel is denied.

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Similarly, the related discovery requests, Interrogatories 15, 16, and 17 (asking

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Defendants to identify all facts, persons, and documents, respectively, for each response

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to an RFA that was not an unqualified admission) and Request for Production No. 17

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(requesting production of all documents which support the denial of a request for

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admission) are therefore also DENIED.

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Requests for Production Nos. 8 and 9 ask for camera footage which Defendants

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believe show widespread violence or an imminent threat of widespread violence “at the

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location where BRYAN PEASE was arrested.” ECF No. 100-2 at 48-49. Plaintiff’s

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motion to compel as to this interrogatory is denied as duplicative and an attempted end-

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run around discovery. Plaintiff’s requests for all footage of widespread violence or the

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imminent threat for all parts of the rally (RFPs 6 and 7) were denied above because there

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was ample opportunity to obtain that discovery during the previously open discovery

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period. See § III.(a). Had Plaintiff previously timely issued a request such that this

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request sought to supplement any additional footage that may be specific to Plaintiff, that

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request may have been permissible. But that is not the case. The scope of this

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interrogatory is subsumed by Request Nos. 6 and 7, which were denied. Id. It would be

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an unfair end-run around the currently open parameters of discovery to permit a response

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to this request under the present circumstances. See, e.g., Cruz v. United States, No.

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14CV2956-LAB (DHB), 2016 WL 727066, at *2–3 (S.D. Cal. Feb. 24, 2016) (finding

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subsequent RFP to be “substantially similar” to earlier RFP and rejecting as untimely

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joint discovery motion based on response deadline for subsequent RFP); ViaSat, Inc. v.

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Space Sys./Loral, Inc., No. 12-CV-0260-H WVG, 2013 WL 3467413, at *5–7 (S.D. Cal.

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July 10, 2013) (declining to allow end run around discovery deadline via Rule 30(b)(6)

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deposition on twenty-four topics duplicative of interrogatory responses, to which the

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court already denied motion for supplemental responses).

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B. Disputes Regarding Body Cam Footage are Untimely

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Many of the requests at issue relate to the production of body cam footage,

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specifically: Requests for Production Nos. 4-10, Requests for Admission Nos. 1-3, and

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Interrogatory No. 5. ECF No. 100-1 at 2. City Defendants contend that such footage (“to

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locate acts of violence, or the lack thereof”) is not relevant because Plaintiff Pease’s

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complaint does not claim that violence was a reason for his allegedly unlawful arrest.

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ECF No. 100-1 at 6. Further, City Defendants argue that being required to review

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hundreds of hours of video footage is not proportional to the needs of this case and would

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impose undue burden and expense. ECF No. 100-1 at 6.

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While not raised by either party, the Court notes that during discovery in the

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Ramirez matter, the parties filed a request for “an extension of time within which to file a

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motion to compel regarding production of certain body camera footage that the parties

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are in the process of reviewing.” ECF No. 45. The parties presented no good cause for

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the extension and failed to provide the information required by the Chambers’ Rules. See

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ECF No. 45; Hon. Nita L. Stormes, Civil Case Procedures §§ III(C) and VI(C)(2)(d)).

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The Court denied the motion without prejudice to refiling the extension request in

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compliance with the Chambers’ Rules. ECF No. 47. The parties again filed a request for

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extension, and presented as good cause the same arguments the parties assert in the

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present dispute:

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Good cause exists to extend the deadline to bring a motion regarding SDPD
bodycam footage. The City is unwilling at this time to release all of the
bodycam footage because of privacy and privilege concerns, as well as the
undue burden of reviewing many hours of footage in order to produce only
material, unprivileged footage. However, the bodycam footage from the
officers who actually arrested Plaintiffs does not show what happened in the
moments leading up to the arrests because they are blocked by other officers
standing in front of them. Accordingly, City Defendants have agreed to
make all bodycam footage available at the Office of the City Attorney for
Plaintiffs’ counsel to examine and further discuss what footage should be
turned over. This will require more time.

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ECF No. 48 at 2. Unfortunately, while the parties’ second request for an extension

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included good cause, it did not include any information regarding the timeliness of the

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dispute. Accordingly, the Court ordered the Ramirez plaintiffs—through their counsel,

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Plaintiff, Mr. Pease—to supplement the request with information necessary to establish

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the dispute was timely. ECF No. 49 (“The amended joint motion presents good cause for

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the requested extension but continues to fail to satisfy the Chambers Rules, specifically,

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the parties fail to provide the Court with the original date or deadline that the motion to

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compel was due. … [Ramirez] Plaintiffs, as the party who would be filing a motion to
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compel, must file a declaration providing the missing information at their earliest

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opportunity.”). The Ramirez plaintiffs never filed the requested supplemental

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information, and so the Court denied the request for an extension. ECF No. 50

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(“Plaintiffs were directed on August 9, 2018 to supplement the joint motion with the

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missing information at their “earliest convenience.” [] No supplement has been filed, and

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sufficient time has now passed that the court concludes the motion is properly DENIED.

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[Dated August 22, 2018]).

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Under Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure, the Court must
limit discovery that is “unreasonably cumulative or duplicative.” Fed. R. Civ. P.

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26(b)(2)(C). Moreover, courts in this district, including this one, routinely reject attempts

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to circumvent discovery deadlines via duplicative discovery requests. See, e.g., Cruz v.

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United States, No. 14CV2956-LAB (DHB), 2016 WL 727066, at *2–3 (S.D. Cal. Feb.

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24, 2016) (finding subsequent RFP to be “substantially similar” to earlier RFP and

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rejecting as untimely joint discovery motion based on response deadline for subsequent

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RFP); see also Bird v. PSC Holdings I, LLC, No. 12-CV-1528 W NLS, 2013 WL

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1120659, at *1 (S.D. Cal. Mar. 18, 2013) (finding joint motion untimely where submitted

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by separate defendant represented by the same counsel, advising the parties that “any

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discovery demands which are substantially similar to previous demands will not re-start

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the clock for filing a discovery motion, and may be grounds for a protective order”).

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Requests regarding body cam are plainly duplicative of prior requests and the

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subject of a prior dispute. Thus, any discovery dispute regarding the production of the

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body cam footage is now untimely.6 That Plaintiff re-submitted these discovery requests

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To the extent the parties reached agreement in the handling of production of body cam footage in
response to the prior dispute, the Court expects the parties to honor that agreement. Rembrandt
Diagnostics, LP v. Innovacon, Inc., 316CV0698CABNLS, 2018 WL 1001097, at *5 (S.D. Cal. Feb. 21,
2018) (“It is important to the Court that the parties meaningfully engage in the meet and confer process
and to further that goal it is appropriate that the Court hold the parties to the agreements reached during
that process.”). However, no order regarding these requests is appropriate in light of the untimely
nature of the motion to compel.
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following consolidation does not re-start the clock. As stated in both the initial and

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consolidated scheduling orders in this case:

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If the parties reach an impasse on any discovery issue, counsel shall file an
appropriate motion within the time limit and procedures outlined in the
undersigned magistrate judge’s chambers rules. A failure to comply in this
regard will result in a waiver of a party’s discovery issue.

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ECF No. 74 at 3 (emphasis in original); ECF No. 18 at 2. The discovery dispute

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regarding body cam footage is untimely.

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In addition to reasons stated above regarding ample opportunity, Plaintiff’s motion

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to compel further responses regarding body cam footage is also DENIED as untimely as

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to Requests for Production Nos. 4, 5, 6, 7, 10; Requests for Admission Nos. 1, 2, 3; and

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Interrogatory No. 5.

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C. Dispute Regarding the After-Action Report is Untimely

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The after-action report at issue is a report prepared after the event to ‘examine the

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pre-planning, execution, and demobilization by the San Diego Police Department and

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allied agencies as it relates to the Trump Rally on May 27, 2016.’ It is dated June 21,

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2016.” ECF No. 100-3 at 2-3. It was produced by City Defendants “on April 11, 2018 in

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redacted form.” ECF No. 100-3 at 2.

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Plaintiff argues the un-redacted after-action report is responsive to RFP Nos. 3 and

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4, and thus should be produced. ECF No. 100-1 at 2-3. City Defendants counter that the

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after-action report is not responsive to RFP Nos. 3 or 4. ECF No. 100-1 at 7. The City

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further contends that because the redacted version of the after-action report was produced

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in April 2018, Plaintiff’s current request is an attempt to “take a second bite of the apple.”

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ECF No. 100-1 at 7. In response, Plaintiff acknowledges the redacted report was

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produced, but argues this does not preclude him from obtaining an un-redacted version in

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his consolidated case. ECF No. 100-1 at 2-3.

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Plaintiff’s motion to compel is untimely. The City’s “initial response” to Plaintiff

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Pease’s after-action report requests was in April of 2018. ECF No. 100-1 at 7. Pursuant

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to this Court’s Chambers’ Rules, counsel were required to file their joint motion for

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determination of their discovery dispute within forty-five days of the initial response.

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Hon. Nita L. Stormes, Civil Case Procedures § VI(C)(2)(b). This discovery dispute is

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being filed approximately one year later. See ECF No. 100 (filed April 19, 2019). “A

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failure to comply [with the timing requirements] will result in a waiver of a party’s

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discovery issue.” ECF No. 74 at 3; ECF No. 18 at 2. Plaintiff’s re-issuance of a

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discovery request does not re-start the clock. See, e.g., Cruz v. United States, 2016 WL

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727066, at *2–3; Bird v. PSC Holdings I, LLC, 2013 WL 1120659, at *1). Likewise,

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Plaintiff’s argument that consolidated cases retain their independent character as the basis

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to permit duplicative discovery is belied by Plaintiff’s own actions and treatment of this

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case: Plaintiff’s own representations to the Court indicate understanding that the

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consolidation was for all purposes other than trial.7 See ECF No. 61 at 4 (“parties do not

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intend to duplicate any discovery and can combine the discovery in the two cases.

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However, the cases should not be consolidated for trial purposes”); ECF No. 68 at 4-5

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(“Plaintiffs do not seriously contend that prejudice would result from pre-trial

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consolidation. To the extent Plaintiffs are concerned with trial issues, Plaintiffs

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acknowledge that the Court has authority to bifurcate trial[,] . . . retain[ing] their separate

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characters’ and warrant[ing] ‘a separate judgment in each case.” Plaintiff’s motion to

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compel is DENIED as untimely.

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D. Other Disputed Requests

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The only remaining requests that are not addressed by the above analysis are

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Requests for Admission Nos. 20-23, and Requests for Production 15 and 16.
RFA No. 20: “Admit that the location where BRYAN PEASE was arrested
is beyond visual sight of the San Diego Convention Center.”

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26
27
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Additionally, all plaintiffs sought leave to jointly file a consolidated fourth amended complaint (ECF
Nos. 71, 89), when the Court had not required a consolidated complaint. See ECF No. 85 at 2, 4.
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3:17-cv-1230-BAS-NLS

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ECF No. 100-2 at 18. In its original response, the City objected, and provided no

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response. ECF No. 100-2 at 18. In response to Plaintiff’s motion to compel, the City

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indicates it has since supplemented its response. Id.

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Without knowing what the supplemental response is, and whether Plaintiff was

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satisfied with it, there is nothing for the Court to compel. To the extent the City may

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have supplemented its response on the eve of the deadline of filing this motion, the Court

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does not condone such a practice. The parties are expected to meet and confer regarding

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discovery responses and the joint motion so that only disputed requests are presented for

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adjudication. Nonetheless, based on the City’s representation that a supplemental

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response was provided an no other argument from Plaintiff, the motion to compel is

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DENIED AS MOOT as to RFA No. 20.

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RFA No. 21: “Admit that when BRYAN PEASE was arrested he was not
physically impeding the movement of law enforcement.”

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15

ECF No. 100-2 at 19. City Defendants objected, claiming the information sought is “not

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relevant to the claims or defenses of any party.” Id.

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The Court disagrees. Plaintiff’s case is, at its core, challenging his arrest. This

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request seeks information directly related to the circumstances of his arrest. This

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information is within the bounds of permissible Rule 26 discovery. The Court GRANTS

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Plaintiff’s motion to compel as to RFA No. 21. Defendants are to provide an answer

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consistent with Rule 36 by no later than 14 days from the date of this order.

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RFA No. 22: “Admit that when BRYAN PEASE was arrested he was
walking backwards at approximately the same speed that the line was
advancing, maintaining at least 15 feet from the line of advancing law
enforcement officers.”

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25
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ECF No. 100-2 at 19. City Defendants objected, claiming that it seeks information with

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is not relevant to Plaintiff Pease’s claims. Id.

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For the same reason as RFA No. 21, the Court overrules Defendants’ objection.

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Plaintiff is plainly asking about the circumstances of his arrest, which is the issue of the

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case. City Defendants claim that the request is “overly broad as to time” and “vague and

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ambiguous.” Id. at 19-20 (noting that it is “unclear at what point in time the request is

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referring to, what ‘line’ he is referring”). These objections are not persuasive; the request

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is understandable, and Defendants’ answer may, consistent with Rule 33, only admit or

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deny parts of the request. Plaintiff’s motion to compel is GRANTED as to RFA No. 22.

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Defendants are to provide an answer consistent with Rule 36 by no later than 14 days

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from the date of this order.

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RFA No. 23: “Admit that BRYAN PEASE was filming the advancing line
of law enforcement personnel at the time he was arrested.”

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13

ECF No. 100-2 at 20. Defendants object, again stating that the information sought is

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irrelevant. Id. However, as with the previous requests in this category, Plaintiff Pease is

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requesting an admission directly related to the circumstances of his arrest. Plaintiff’s

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motion to compel is GRANTED as to RFA No. 23. Defendants are to provide an answer

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consistent with Rule 36 by no later than 14 days from the date of this order.

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19

RFP No. 15: “Produce the timeline previously prepared by Lt. Adam Sharki
without redactions.”

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21
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ECF No. 100-2 at 51. Defendants’ response indicates that the unredacted report was
produced. Id. at 52. Plaintiff’s motion to compel is therefore DENIED AS MOOT.
RFP No. 16: “For each response YOU made to the Requests for Admission
propounded by Plaintiff BRYAN PEASE on the CITY OF SAN DIEGO,
which is not an unqualified admission, produce any and all DOCUMENTS
which support the denial of the particular Request for Admission.”

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ECF No. 100-2 at 52. Plaintiff’s motion to compel is GRANTED IN PART AND

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DENIED IN PART. To the extent that there may be documents that are specific and
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3:17-cv-1230-BAS-NLS

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limited to the scope of Requests for Admission Nos. 21-23 for which the Court ordered

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Defendants to provide further responses, documents should also be produced. To the

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extent that Plaintiff’s motion to compel for any Request for Admission was denied (RFAs

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1-10, 14-19, 20, 25), the request to produce documents is also denied. Any responsive

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documents should be produced within 14 days of the order.

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E. Attorneys’ Fees

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The Court declines to grant attorneys’ fees to either party. M.B.L., Inc. v. Fed. Ins.

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Co., No. CV 13-03951 BRO (AGRx), 2014 U.S. Dist. LEXIS 197240, at *6 (C.D. Cal.

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June 16, 2014) (“District courts have discretion to award attorney’s fees and costs for

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discovery misconduct either under Federal Rule of Civil Procedure 37 or under their

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inherent authority to manage the proceedings before them.”) (citing Fed. R. Civ. P. 37

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and Chambers v. NASCO, Inc., 501 U.S. 32, 33 (1991)).

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IV.

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Plaintiff’s motion to compel is GRANTED IN PART AND DENIED IN PART.

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Defendants are to provide answers to Requests for Admission Nos. 21, 22, and 23 within

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14 days of this order. The motion to compel is denied as to all other requests for the

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reasons provided in this order.

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CONCLUSION

IT IS SO ORDERED.
Dated: May 20, 2019

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3:17-cv-1230-BAS-NLS