The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER RE: MOTION TO COMPEL
Pending before the Court is Defendant, Ernest Serrano and County of Fresno (collectively, "Defendants"), Motion to Compel that was filed on November 30, 2009. (Doc. 61). The parties filed a Joint Statement Regarding Discovery Dispute ("Joint Statement") on January 8, 2010. (Doc. 43). The matter was set for hearing on January 15, 2009 at 9:30 am. Based on a review of the pleadings, the Court determined that the matter was suitable for decision without oral argument pursuant to Local Rule 230(g). Upon consideration of the Joint Statement, Defendants' Motion to Compel is DENIED.
On August 15, 2008, Plaintiff, Alice Rosas Aguilar ("Plaintiff"), filed the instant action in her individual capacity, and also in her capacity as successor in interest against Defendants. (Doc. 2). Plaintiff filed a First Amended Complaint ("FAC") on October 24, 2008, after Defendants' Motion to Dismiss was granted in part. (Doc. 12).
This action arises out of the shooting of Plaintiff's husband, Sergio Rosas Aguilar ("the Decedent"), by Fresno Deputy Sheriff Ernest Serrano on May 17, 2008. In the FAC, Plaintiff alleges that the shooting was unjustified. As a result of her husband's death, Plaintiff alleges she has suffered loss of support, loss of companionship, loss of care, loss of consortium, loss of society, lost earnings, medical expenses, as well as burial and funeral expenses. She alleges violations of 42 U.S.C. § 1983, assault and battery, negligence, and wrongful death as causes of action. Plaintiff is seeking compensatory and general damages in the amount of at least ten million dollars; punitive and exemplary damages; costs; reasonable attorney fees; and other relief the Court may deem proper.
Defendants allege that following the shooting, statements were made by witnesses to Fresno County Sheriff's Detectives concerning Plaintiff's drug use and its effect on the decedent. Specifically, Plaintiff's daughter, Marie Sustaita, stated that Plaintiff was depleting the family finances because Plaintiff would spend money on drugs which caused the decedent considerable stress. As a result, the decedent contemplated suicide. See, Report of Detective Toscano, dated May 20, 2008, Exhibit 1at pg. 7 to Declaration of James Weakley. (Doc. 75).
On October 29, 2009, this Court issued an order that Defendant may depose Plaintiff and other individuals regarding her drug use one year prior to the date of the deposition.*fn1 (Doc. 52). In Plaintiff's second deposition taken on November 19, 2009, Plaintiff admitted to using methamphetamine before her husband's death, but denied using his income to buy the drugs. Transcript of Plaintiff's Deposition dated November 19, 2009 at pgs. 169-171, Exhibit 2 of Declaration of James Weakley. (Doc. 75).
In the instant motion, Defendants seek an order requiring Plaintiff to: 1) provide the name(s) and address(es) and telephone numbers of all individuals from whom she obtained methamphetamine, and 2) provide the name and address of all persons from whom she received money to purchase methamphetamine. Defendants also request that they be permitted to take the deposition of any person identified by Plaintiff. Finally, Defendants request that the Court deny Plaintiff's request to extend the trial date.
Defendants argue that Plaintiff's source of income to purchase methamphetamine is relevant to the decent's state of mind given witness statements indicating that Plaintiff's drug use depleted the family's finances and caused the decedent a significant amount of stress. Defendants contend that the requested information is vital to Plaintiff's claim that she did not use her husband's money to buy drugs. If the motion is denied, Defendants request that the Court issue an order precluding Plaintiff from introducing evidence at trial concerning her source of money to purchase methamphetamine.
Plaintiff counters by arguing that Defendants have already been permitted to depose Plaintiff on the issue of her drug use in order to establish the effect it may have had on the decedent. Plaintiff contends that the requested information is not relevant to the issues in this lawsuit. Moreover, compelling Plaintiff to provide this information would violate her Fifth Amendment right against self-incrimination as any answers may subject Plaintiff to criminal investigation or prosecution. Allowing Defendants to probe into issues related to ...