The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER OVERRULING PLAINTIFFS' OBJECTIONS TO MAGISTRATE JUDGE'S MAY 15, 2009 DISCOVERY ORDER
Pending before the Court are Plaintiffs' objections to Magistrate Judge Jan M. Adler's May 15, 2009 discovery order. Judge Adler denied Plaintiffs' requests to (1) reopen the deposition of Chief Patrol Agent Michael Fisher; and (2) compel production of members of the Disciplinary Review Board ("DRB") for deposition or, in the alternative, compel the production of all documents reviewed by the DRB in deciding to take "no action" against Agent Faustino Campos following the shooting death of Guillermo Martinez.
The court decides the matter on the papers submitted and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons discussed below, the Court OVERRULES Plaintiffs' objections (Doc. Nos. 99, 108).
On December 30, 2005, Decedent Guillermo Martinez, along with four other persons, attempted to enter the United States near the San Ysidro port of entry. Defendant U.S.A. asserts that Decedent was smuggling aliens.
As Decedent and the other persons came to the secondary fence, Agent Campos approached in his vehicle. When Agent Campos exited his vehicle, Decedent ran and Agent Campos gave chase. During the pursuit, Agent Campos fired his weapon striking Decedent beneath the shoulder blade. Despite being shot, Decedent continued to run, re-entered Mexico, and proceeded to a hospital. Decedent later died due to the gunshot wound.
Plaintiffs filed their Complaint on December 20, 2006 for wrongful death under the Federal Tort Claims Act. Under the Amended Case Management Order, the discovery cut-off was set for December 9, 2008.
On October 9, 2008, Plaintiffs propounded requests for admission ("RFAs") on Defendant U.S.A. (See Singleton Decl. [Doc. 108-2], Ex. H at Ex. 2.) Requests 17 and 18 sought an admission that no U.S. Border Patrol agent or employee, and no agent or employee of any agency or office of the U.S. Government, made a determination regarding whether Agent Campos' shooting "was consistent with the polices and procedures adopted by the [U.S.] that govern the use of deadly force by law enforcement officers of the U.S." (Id., Ex. H at Ex. 2, p.2.)
On November 12, 2008, Defendant responded to the requests by stating, in part, that no such determination had been made. However, Defendant advised Plaintiffs that the DRB reviewed Agent Campos' use of force to determine whether there was any evidence of misconduct that would warrant administrative discipline, that the DRB found no such evidence, and that the DRB did not impose discipline of any kind. (Singleton Decl., Ex. H at Ex. 3, pp. 3--4.)
On December 16, 2008, Plaintiffs sent Judge Adler a letter identifying a "list of discovery issues...." (Def.'s Ex. Part I [Doc. No. 116-1], Ex. 5 at p.1.) Among the issues, Plaintiffs sought to depose DRB members who reviewed Agent Campos's use of force, and Plaintiffs requested all documents the DRB reviewed in reaching its decision. (Id.)
On January 15, 2009, Judge Adler held a discovery hearing. During the hearing, Defendant agreed to respond to two additional interrogatories regarding whether a determination was made that the shooting was consistent with the policies and procedures adopted by the U.S. governing the use of deadly force. (Def.'s Ex. Part I, Ex. 7 at p.13; Def.'s Ex. Part II [Doc. No. 116-2], Ex. 8 at pp. 3--4.) Judge Adler then denied Plaintiffs' requests regarding the DRB, subject to Defendant responding to the interrogatories. (Def.'s Ex. Part I, Ex. 7 at p.15.)
On January 16, 2009, Defendant U.S.A. sent Plaintiffs a letter stating that Defendant reserved the right to offer testimony as to the DRB and its conclusion about the shooting at trial. Based on this reservation, Plaintiffs renewed their demand to depose the DRB members and for production of the DRB's documents. (Singleton Decl., Ex. G at pp. 1--2.) Later, another dispute arose between the parties regarding whether Plaintiffs could re-open the deposition of Chief Patrol Agent Michael Fisher.
On May 15, 2009, Judge Adler held another discovery hearing regarding the two issues. Judge Adler ultimately denied Plaintiffs' discovery ...