Wilson v. Segovia et al
Filing
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ORDER Denying Plaintiff's Motion to Take Depositions of Plaintiff's Witnesses and Motion for Pitchess Review (ECF No. 34 ). Signed by Magistrate Judge Mitchell D. Dembin on 10/13/2020. (All non-registered users served via U.S. Mail Service)(jdt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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LUCIOUS WILSON,
Case No.: 19cv2254-LAB-MDD
Plaintiff,
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v.
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SGT. SEGOVIA, et al.,
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Defendants.
ORDER DENYING PLAINTIFF'S
MOTION TO TAKE DEPOSITIONS
OF PLAINTIFF'S WITNESSES
AND MOTION FOR PITCHESS
REVIEW
[ECF No. 34]
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On October 7, 2020, Plaintiff Lucious Wilson (“Plaintiff”), a state
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prisoner proceeding pro se and in forma pauperis in this civil rights action
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pursuant to 42 U.S.C. § 1983, filed a motion to depose certain witnesses and
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for Pitchess review of Defendants’ personnel files. (ECF No. 34). For the
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reasons stated herein, the Court DENIES Plaintiff’s motions.
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As an initial matter, Plaintiff does not need the Court’s permission to
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depose non-party witnesses. Fed. R. Civ. P. 30(a). In order to secure the
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appearance of non-party witnesses at their depositions, the witnesses must
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be personally served with subpoenas that are accompanied by money orders
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for witness fees and, if applicable, travel expenses.1 Fed. R. Civ. P. 45; 28
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U.S.C. § 1821. However, the discovery completion deadline in this case was
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October 12, 2020.2 (ECF No. 25 at 2). In the scheduling order, the Court
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advised the parties that “‘[c]ompleted’ means that interrogatories, requests
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for production, and other discovery requests must be served at least thirty
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(30) days prior to the established cutoff date so that responses thereto will be
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due on or before the cutoff date. All subpoenas issued for discovery must be
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returnable on or before the discovery cutoff date” (Id.). Plaintiff signed the
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instant motions on September 16, 2020. As a result, even if Plaintiff had
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issued subpoenas on that date, they would be untimely.
Plaintiff’s Pitchess motion is also untimely. Plaintiff seeks the
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disclosure of “all incidents of excessive force or any other acts of violence” in
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Defendants’ personnel files. (ECF No. 34 at 9). Pitchess v. Super. Ct. of L.A.
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Co. (Echeveria), “established that a criminal defendant could ‘compel
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discovery’ of certain relevant information in the personnel files of police
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officers by making ‘general allegations which establish some cause for
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discovery’ of that information and by showing how it would support a defense
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to the charge against him.” Warrick v. Superior Court, 35 Cal. 4th 1011,
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1018-19 (Cal. 2005). “In 1978, the California Legislature codified the holding
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. . . by enacting . . . Evidence Code sections 1043 through 1045. California’s
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Evidence Code § 1043 now provides a procedure for discovery of peace officer
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personnel records in state judicial proceedings, but § 1043 is not binding upon
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The deposing party must also bear the costs of recording the depositions, bear the costs
of transcribing the depositions if the party intends to use them as evidence in a
proceeding, and must arrange for the depositions to be conducted before an officer.
2 Discovery is extended until October 31, 2020 for the sole purpose of Defendants obtaining
Plaintiff’s deposition. (ECF No. 25 at 2).
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federal court.” Jackson v. Cty. of Sacramento, 175 F.R.D. 653, 655 (E.D. Cal.
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1997) (internal citations omitted).
This is a federal civil rights action under 42 U.S.C. § 1983 to which
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the Federal Rules of Civil Procedure apply and Plaintiff’s Pitchess motion
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under California law is not binding on this court.3 To the extent that
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Plaintiff seeks discovery of Defendants’ personnel files in this case, he should
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have referred to Federal Rule of Civil Procedure 34(a), which allows a party
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to request the production of any document within the scope of Rule 26(b).
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However, as indicated previously, even if Plaintiff had appropriately
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propounded discovery requests upon Defendants on September 16, 2020, they
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would be untimely. (See ECF No. 25 at 2).
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Accordingly, the Court DENIES Plaintiff’s motions. (ECF No. 34).
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IT IS SO ORDERED.
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Dated: October 13, 2020
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The motion presently before the Court cannot be construed as a motion to compel.
Plaintiff has not demonstrated that he made a request to Defendants for production of
these documents. Also, Plaintiff does not clearly describe his attempts to obtain the
relevant documents directly from Defendants through a proper discovery request and does
not present any arguments that demonstrate how Defendants’ objections to Plaintiff’s
requests were unjustified.
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19cv2254-LAB-MDD
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