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Paul Bashkin v. San Diego County

January 13, 2011

PAUL BASHKIN,
PLAINTIFF,
v.
SAN DIEGO COUNTY, HOWARD KLUGE,
BRET GARRETT, & DOES 1-100,
DEFENDANTS.



The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge

ORDER ON PLAINTIFF'S EX PARTE STATEMENT REGARDING CONTINUING DISCOVERY DISPUTES

(DOC. NO. 80)

Before the Court is Plaintiff's ex parte statement (Doc. No. 80) on the status of continuing discovery disputes, as well as Defendants' response (Doc. No. 82). Having carefully considered all of the discovery disputes presently before the Court, as well as the disputes on which the Court reserved judgment in its November 3, 2010, Order (Doc. No. 77), the Court hereby rules on the disputes and orders the parties to proceed consistently with this Order.

I. BACKGROUND

On October 12, 2010, The Honorable William Q. Hayes granted Plaintiff's motion for leave to amend his Complaint. Specifically, Plaintiff was allowed to make additional allegations to cure a pleading deficiency in his second cause of action ("Conspiracy to Interfere with Civil Rights" pursuant to 42 U.S.C. § 1985). Plaintiff filed his First Amended Complaint on October 22, 2010. Defendants responded by Motion to Dismiss, which is currently pending before Judge Hayes.

Over the course of the past year, the parties have been embroiled in a series of continuing and increasingly contentious discovery disputes. On September 10, 2010, the Court convened yet another discovery conference to address the state of discovery and to resolve any continuing disputes. Plaintiff, Paul Bashkin, appeared on his own behalf, and James M. Chapin appeared on behalf of the defendants, San Diego County, Howard Kluge, and Bret Garrett (collectively, "Defendants"). Based on the parties' inability to interact without the Court's oversight, the Court supervised the parties as they met and conferred. The Court then ordered the parties to further meet and confer and submit a joint statement on continuing and resolved disputes. The parties' ensuing joint statement (Doc. No. 74) indicated that Defendants agreed to provide responses to sixteen (16) disputed topics, but indicated that eighteen (18) disputed items remained.

On November 3, 2010, the undersigned issued an Order that required Defendants to respond to the discovery requests to which they had agreed to respond. (Doc. No. 78.) The Court reserved judgment on the 18 remaining disputed items so that they could be considered together with Plaintiff's objections, if any, to Defendants' responses to the 16 undisputed items. On December 10, 2010, Plaintiff filed an ex parte statement that contained his objections to Defendants' supplemental responses. (Doc. No. 78.) Plaintiff apparently attempted to meet and confer with Defendants, who did not respond. Defendants filed their response to Plaintiff's statement on December 16, 2010. (Doc. No. 82.) Rather than address the objections in Plaintiff's ex parte statement, Defendants tersely stated that they have fully answered all interrogatories and no additional information exists. The Court now rules on all of the continuing and reserved disputes.

II. RULINGS

A. Source of the Dispute: The Parties' Inability to Cooperate

The source of the parties' continuing dispute is two-fold. First, Plaintiff over-analyzes Defendants' responses and continually complains that Defendants' responses are evasive, incomplete, vague, "obstreperous," and lack sufficient detail. He seeks narrative recitations of each and every possible detail and even narrative recreations of information that is contained in books and other printed materials. For their part, Defendants provide guarded responses that are devoid of much detail, while simultaneously protesting that Plaintiff seeks every possible minute detail. Defendants then provide minimal additional details, but only when ordered by the Court - and even then their responses remain vague and devoid of much detail. After carefully reviewing Plaintiff's interrogatories, Defendants' initial responses, Plaintiff's initial objections, Defendants' amended responses, and Plaintiff's current objections, the Court finds that several of Defendants' responses appear adequate given the wording of the requests, while some of Plaintiff's objections have merit. Ultimately, both sides are simultaneously in the right and in the wrong.

In the written discovery process, parties are not entitled to each and every detail that could possibly exist in the universe of facts. IBP, Inc. v. Mercantile Bank, 179 F.R.D. 316, 321 (D. Kan. 1998) ("To require specifically each and every fact and application of law to fact, however, would too often require a laborious, time-consuming analysis, search, and description of incidental, secondary, and perhaps irrelevant and trivial details. The burden to answer then outweighs the benefit to be gained."). Nor is Plaintiff entitled to a narrative account of Defendants' case. See Lucero v. Valdez, 240 F.R.D. 591, 594 (D. N.M. 2007) ("Contention interrogatories should not require a party to provide the equivalent of a narrative account of its case, including every evidentiary fact, details of testimony of supporting witnesses, and the contents of supporting documents."); see also Gregg v. Local 305 IBEW, 2009 U.S. Dist. LEXIS 40761 (N.D. Ind. May 13, 2009) ("To respond would be an unduly burdensome task, since it would require the Defendants to produce veritable narratives of their entire case.") (citing IBP, Inc.).

Further, to the extent Plaintiff seeks every minute detail and narratives about the subject incident and every possible surrounding circumstance, written discovery is not the proper vehicle to obtain such detail. Johnson v. Couturier, 261 F.R.D. 188, 192 (E.D. Cal. 2009) ("[I]t is not the purpose of early interrogatory discovery to have one side or the other give a complete rendition of each and every minute, factual detail which will surface at trial."); IBP, Inc., 179 F.R.D. at 321 ("Other discovery procedures, such as depositions and production of documents, better address whatever need there be for that kind of secondary detail."). Plaintiff often uses the written interrogatory process essentially as a substitute for depositions, engages in hyper-critical word-play, and strenuously objects whenever the responses are not worded as he wishes. However, interrogatories and depositions serve different functions:

Written interrogatories are rarely, if ever, an adequate substitute for a deposition when the goal is discovery of a witness' recollection of conversations. . . . Only by examining a witness live can a lawyer use the skills of his trade to plumb the depths of a witness' recollection, using to advantage not only what a witness may have admitted in answering interrogatories, but also any new tidbits that usually come out in the course of answering carefully framed and pin-pointed deposition questions. Written interrogatories are not designed for that purpose; pointed questions at deposition are the only effective way to discover facts bottled up in a witness' recollection.

Shoen v. Shoen, 5 F.3d 1289, 1297 (9th Cir. 1993).

The nature of Plaintiff's requests notwithstanding, Defendants have engaged in dilatory tactics. While simultaneously accusing Plaintiff of hyper-sensitive word-play, Defendants engage in improper tactics on several instances, as the Court will elaborate below. As just one example, Defendants keep several of their responses general, lacking in any useful detail, and only provide more detail when ordered to do so by the Court---and sometimes not even then. Further, at times, Defendants fail to address the call of Plaintiff's question and answer a question not asked.

The parties' behavior in this case is neither acceptable nor productive. Therefore, while the Court generally refrains from shaping the substance of discovery responses or providing such guidance, IBP, Inc., 179 F.R.D. at 319, the Court must do so in this case in light of the entrenched positions the parties have taken and Defendants' sometimes evasive and dilatory responses. The Court expects that this Order will be its final word on the disputes before it, and the Court will consider sanctions if the parties engage in further deliberate failures to obey the Court's Order or engage in further dilatory tactics.

A. The Continuing Disputes

Because the disputed interrogatories are currently scattered among various entries on the Court's docket, the Court methodically consolidates and rules on each disputed item below.

1. Kluge, Special Interrogatory No. 1 Plaintiff propounded the following interrogatory: "Describe in detail any and all training that YOU had received as a San Diego [S]herriff's [D]eputy as of August 8, 2006, with regard to investigating an individual suspected of violating California Penal Code § 602(o)." (Doc. No. 64-3 at 2.)

Defendant Kluge's first response: "All my training with regards to investigating an individual suspected of violating California Penal Code [Section] 602(o), was obtained during training scenarios and material given out to all cadets during my attendance at the San Diego Regional Law Enforcement Academy training course, during patrol phase training with a San Diego Sheriff's Department Corporal or Filed [sic] Training Officer, and by reviewing the trespassing sections of the California Penal Code book." (Id.)

Plaintiff's objection: "This response is non-responsive and frivolous. The interrogatory sought a detailed description of all of the training Kluge received, yet nowhere in the response does Kluge describe any of his training, etc., much less with any specificity. This is exactly the type of response to which the Court ordered defendants Garrett and San Diego County to provide amended responses. Moreover, the 'material' referenced in Kluge's response is so general that Bashkin cannot determine if it was included in Kludge's response to Bashkin's Request for Production of Documents, so as to render those responses deficient, as well." (Id. at 2-3.)

Kluge's second response: "All my training with regards to investigating an individual suspected of violating California Penal Code [Section] 602(o), was obtained during training scenarios and material given out to all cadets during my attendance at the San Diego Regional Law Enforcement Academy training course, during patrol phase training with a San Diego Sheriff's Department Corporal or Filed [sic] Training Officer, and by reviewing the trespassing section of the California Penal Code book. I can't restate any specifics about such training without identifying a specific scenario." (Doc. No. 80, Ex. C at 1-2 (emphasis added to highlight new response).)

Plaintiff's second objection: "Kluge's Supplemental Response is obstreperous. Kluge agreed, through his counsel, to correct the deficiencies articulated by Bashkin in [his first objection]; otherwise, this would have remained a disputed response left for the Court to resolve. The interrogatory sought a detailed description of all of the training Kluge received, yet nowhere in the response does Kludge describe any of his training, etc., much less with any specificity. The only change made in Kluge's supplemental response was the addition of the final sentence: 'I can't restate any specifics about such training without identifying a specific scenario.' This is pure nonesense [sic]. In fact, Kluge can and must provide specifics about his training because: (a) that is what he agreed to provide; and (b) Bashkin has identified the 'specific scenario': Kluge's alleged probable cause to arrest Bashkin for trespassing, which comprises the defense in this case! Therefore, Kluge must describe his training in detail, as agreed upon, especially as it correlates to the unspecified 'training scenarios and material' referenced in both his original and amended responses." (Doc. No. 80 at 3 (citations and bold emphasis omitted; underling in original).)

The Court's ruling: This interrogatory is a more specific version of Special Interrogatory No. 4, below, which asks for the same information on "trespassing" in general rather than Section 602(o) specifically. Since "trespassing" includes various Penal Code sections, including Section 602(o), this interrogatory is redundant. Defendants shall not be required to further respond to Interrogatory No. 1, but must respond to Interrogatory No. 4 as ordered below.

2. Kluge, Special Interrogatory No. 4 Plaintiff propounded the following interrogatory: "Describe in detail any and all training YOU received as a San Diego County

[S]heriff's [D]eputy as of August 8, 2006, with regard to investigating an individual suspected of trespassing." (Doc. No. 64-3 at 4.)

Defendant Kluge's first response: "See response to [Special Interrogatory] #1 above." (Id.)

Plaintiff's objection: "See [objection to Special Interroga-tory No. 1]. Additionally, this is not the same as No. 1." (Id.)

Kluge's second response: "See response to [Special Interrogatory] #1 above." (Doc. No. 80, Ex. C at 3.)

Plaintiff's second objection: "Kluge's Supplemental Response is obstreperous. Kluge agreed, through his counsel, to correct the deficiencies articulated by Bashkin in [his first objection] and to provide a separate response (from his response to #1), since these were not identical interrogatories. However, the supplemental response still only references his response to #1, with the only change therein being the addition of the final sentence: 'I can't restate any specifics about such training without identifying a specific scenario.' This is pure nonesense [sic]. In fact, Kluge can and must provide specifics about his training because: (a) that is what he agreed to provide; and (b) Bashkin has identified th 'specific scenario': Kluge's alleged probable cause to arrest Bashkin for trespassing, which comprises the defense in this case! Therefore, Kluge must describe his training in detail, as agreed upon, especially as it correlates to the unspecified 'training scenarios and material' referenced in both his original and amended responses." (Doc. No. 80 at 4 (citations and bold emphasis omitted; underling in original).)"

The Court's ruling: KLUGE IS ORDERED TO RESPOND TO THE INTERROGATORY IN GOOD FAITH. This interrogatory is a prime example of a question that is more suitable as a deposition question than one propounded in writing due to the amount of information it requests. However, it is also a prime example of where Kluge could provide a substantive answer but refuses to do so. On the one hand, Plaintiff is asking for a narrative of all of Kluge's training. On the other hand, Defendant indicates that he received training on trespass crimes in the academy and through field training, but provides no detail whatsoever of any of the training. As has been the practice, his response remains general.

Moreover, the indication that he cannot describe any of his training without Plaintiff's identification of specific scenarios is dilatory and evasive. That representation is suspect since the interrogatory's subject matter, "investigating an individual suspected of trespassing," is sufficiently narrow and Defendants have provided specific academy training materials in other interrogatory responses that address trespassing investigations.

To the extent that Kluge received specific training during field training (e.g., received a radio call to investigate a trespass with his field training officer), he should indicate as much and describe the specific radio call or incident that provided him the training opportunity. In other words, Kluge shall identify the training he received during field training since he is the one with that knowledge. However, because by its very nature field training is experience-based and dependent on whatever radio call the training unit receives, it is entirely possible that Kluge may not have received a trespass call for the duration of his field training. If that is the case, Kluge should state so. If he cannot remember whether he received such a call (or received such a call but cannot remember the details) because field training occurred long ago, he should state so. What he may not do is state generally that he received field training on trespass investigations and leave Plaintiff without any details.

To the extent that Kluge received any training on trespass investigation in the academy, although Plaintiff is not entitled to a narrative response, he is entitled to know what that training consisted of. If all of the training was contained in books or other printed materials, Defendant is ORDERED to produce these to Plaintiff in paper format. If Kluge received additional academy training that is not contained in books or other printed materials, he is ORDERED to describe that training as his memory permits.

3. Kluge, Special Interrogatory No. 9

Plaintiff propounded the following interrogatory: "Describe in detail each and every policy or procedure of the San Diego Sheriff's Department as of August 8, 2006, with regard to how its deputies were supposed to document suspected crimes." (Doc. No. 64-3 at 5.)

Defendant Kluge's first response: "The question is too broad in order for me to properly respond. However if Mr. Bashkin had been placed under citizen's arrest or arrest by me for violating any section of the California Penal [C]ode trespassing laws [sic] an arrest report and a citation would have been completed/issued to Mr. Bashkin for the misdemeanor offense. Mr. Bashkin was not placed under arrest at any point, but was repeatedly advised that he risked being placed under arrest if he did not comply with the lawful order to leave the Barona Casino property at once." (Id. at 6.)

Plaintiff's objection: "This response is evasive, incomplete, and non-responsive. On its face, the interrogatory is not 'too broad'; there is no explanation as to why it is 'too broad'; and no proper objection was posited in support of that position. It is a perfectly legitimate and relevant question that requires a response on the merits; either there are policies and/or procedures for documenting suspected crimes or there are not. Moreover, the question did not ask about documenting a 'crime'; it sought information about documenting a 'suspected' crime.' If there are no policies or procedures for 'documenting a suspected crime,' then Kluge must state so. Conversely, if there are, then he must answer the interrogatory and 'describe' those policies and procedures 'in detail.'" (Id.)

Kluge's second response: "The question is too broad in order for me to properly respond. However if Mr. Bashkin had been placed under citizen's arrest or arrest by me for violating any section of the California Penal [C]ode trespassing laws [sic] an arrest report and a citation would have been completed/issued to Mr. Bashkin for the misdemeanor offense. Mr. Bashkin was not placed under arrest at any point, but was repeatedly advised that he risked being placed under arrest if he did not comply with the lawful order to leave the Barona Casino property at once. No policies exist for documenting potential crimes, only actual crimes and arrests." (Doc. No. 80, Ex. C at 3 (emphasis added to highlight new response).)

Plaintiff's second objection: "Kluge's Supplemental Response is obstreperous. Kluge agreed, through his counsel, to correct the defects articulated by Bashkin in [his first objection]; otherwise, this would have remained a disputed response left for the Court to resolve. Specifically, he agreed to provide an amended response that deleted all of the irrelevant verbiage and simply states that: 'There were no policies in effect at that time for documenting suspected crimes.' Instead, his supplemental response incorporated the original irrelevancies and added the following non-responsive sentence: 'No policies exist for documenting potential crimes, only actual crimes and arrests.' Kluge must respond pursuant to the parties' agreement." (Doc. No. 80 at 4-5 (some emphasis omitted; remaining emphasis in original).)

The Court's ruling: This interrogatory is an example of one that is unsuitable as a written interrogatory and should have been a request for document production instead. Quite simply, Plaintiff is not entitled to Kluge's re-creation of the Sheriff's written policies and procedures ("P&Ps"). Written P&Ps speak for themselves and their production is sufficient. Requiring Kluge to summarize in narrative form what Plaintiff can read himself is unduly burdensome and unreasonable. Moreover, Plaintiff's second objection demonstrates his practice of hyper-critical dissection of Defendants' responses.

In any event, Kluge directly responded to this interrogatory: No such policy exists. That response is clear and directly responsive to the interrogatory. Kluge shall not be compelled to further respond.

4. Kluge, Special Interrogatory No. 10

Plaintiff propounded the following interrogatory: "Identify with particularity any limitations placed on the amount of information (e.g., the number of words, characters or letters) that YOU could include in the August 8, 2006 'Unit History' ([a.k.a.] 'CAD') disposition YOU made of the INCIDENT." (Doc. No. 64-3 at 6.)

Defendant Kluge's first response: "There are 'character' limitations placed on the amount of information that can be written down when making a disposition in regards to an event on a San Diego Sheriff's Department Mobile Data Computer in patrol vehicles. The 'Unit History' or 'CAD' disposition requires some documentation as to the action(s) taken while at the scene of a call or observed activity. The information should include the person(s) contacted, where contacted and why." (Id.)

Plaintiff's objection: "The response is frivolous, evasive and non-responsive. The request did not ask 'if' there were character limitations placed on the amount of information included in the CAD; it asked what were those limitations. In his deposition . . . , Kluge testified that '[y]ou're limited as far as what you can put in there because it will only accept so many characters or words or letters, so you have to be extremely brief.' Thus, this interrogatory seeks information as to those specific limitations. Respondent stated there were 'character' limitations; so, what are those limitations? Where are those limitations documented (in a policy manual, regulation, etc.)? Moreover, regarding that portion of Kluge's response referencing the 'Unit History' or 'CAD' documentation or information required, what is the specific information required and where are those requirements documented?" (Id. at 7 (emphasis in original).)

Kluge's second response: "There are 'character' limitations placed on the amount of information that can be written down when making a disposition in regards to an event on a San Diego Sheriff's Department Mobile Data Computer in patrol vehicles. I don't know the exact limit, but at that time it wasn't much. The 'Unit History' or 'CAD' disposition requires some documentation as to the action(s) taken while at the scene of a call or observed activity. The information should include the person(s) contacted, where contacted and why." (Doc. No. 80, Ex. C at 3-4 (emphasis added to highlight new response).)

Plaintiff's second objection: "Kluge's Supplemental Response is obstreperous. Kluge agreed, through his counsel, to correct the deficiencies articulated by Bashkin in [his first objection], including to: (a) specify the exact limitations placed on the amount and type of information that could be contained in Kluge's 'Unit History' or 'CAD' disposition; (b) identify the origin of those limitations; i.e., whether they are set forth in some policy or are purely a function of the 'CAD' device itself; and (c) identify the specific policy that supports the last two sentences of his response: 'The "Unit History" or "CAD" disposition requires some documentation as to the action(s) taken while at the scene of a call or observed activity. The information should include the person(s) contacted, where contacted and why.'

Instead, the only change Kluge made in his response was to add the representation that 'I don't know the exact limit, but at that time it wasn't much.' This supplementation not only breaches the parties' agreement, but is equivocal and, most likely, fraudulent. On the one hand, Kluge asserts that there is a 'character' limit; yet on the other hand, he now represents that he does not know what that limit is, thus begging the question: then how does he know that there is a limit and that the limit 'wasn't much'?!

In his deposition, Kluge claimed that he did not contemporaneously document key elements of the defense; e.g., Bashkin's alleged refusal to leave Barona and Kluge's alleged non-forceful 'arm guiding' of Bashkin, because of the character limitations placed on his CAD disposition. It is undisputed that Bashkin is entitled to discover exactly what those limitations were and decide how best to process that information. If, in fact, Kluge is lying, and that the CAD either had no limitations or there were many more characters that Kluge could have used, then Bashkin is entitled to utilize this information to his advantage at trial.

The bottom line is that Kluge either knows the exact character limitations placed on his CAD disposition or could have easily obtained that information through defendant San Diego County, Kluge's employer and a co-defendant in this lawsuit. Regardless, Kluge agreed to provide this information in his supplemental response to this interrogatory, yet failed to do so. The information sought by Bashkin in this interrogatory is vital to the prosecution of this lawsuit, going directly to defendants' credibility and the impeachment thereof, regarding a material issue in this lawsuit." (Doc. No. 80 at 5-6 (all emphasis in original).)

The Court's ruling: Kluge shall not be compelled to further respond. Kluge, as a user of the CAD (not the inventor, programmer, or IT professional), has stated that he knows there is some sort of character limit but does not know what the specific limit is. His knowledge of some form of limit is presumably based on his past experience as he has tried to input an entry that exceeded the character limit. Plaintiff insists that Kluge must know what the CAD character limit is and demands a specific number. However, given that Kluge is merely a user of the CAD system and has represented that he does not know the exact character limit, his second answer is responsive. Ultimately, Kluge is not the correct party to whom this interrogatory should be directed, as Plaintiff himself seems to recognizes ("[Kluge] could have easily obtained that information through defendant San Diego County, Kluge's employer and a co-defendant in this lawsuit").

5. Kluge, Special Interrogatory No. 23

Plaintiff propounded the following interrogatory: "Identify with particularity any money or things of value that the San Diego County Sheriff's Department has ever received from BARONA or any of its representatives." (Doc. No. 64-3 at 15.)

Defendant Kluge's first response: "I can't answer this question since it requests personal knowledge and information regarding any possible money or things of value exchanged between the San Diego Sheriff's Department, the Barona Casino, or its representatives. I am a Detective with the San Diego Sheriff's Department and the question is not something I would know in my current or past job position(s) with the County of San Diego." (Id.)

Plaintiff's objection: "The response is purposely evasive. Respondent must answer the question, if he is knowledgeable of 'any money or things of value that the San Diego County Sheriff's Department has ever received from BARONA or any of its representatives.' As to the last sentence of the response, the question is not seeking information about something that respondent 'might' know about his 'current or past job position(s) with the County of San Diego.' It seeks information regarding respondent's actual knowl-edge, irrespective of what is 'generally' known by an employee in his job capacity." (Id. (emphasis in original).)

Kluge's second response: "I do not know. I am a Detective with the San Diego Sheriff's Department and the question is not something I would know in my current or past job position(s) with the County of San Diego." (Doc. No. 80, Ex. C at 5.)

Plaintiff's second objection: "Kluge's Supplemental Response is obstreperous. Kluge agreed, through his counsel, to either:

(a) identify any money or things of value that the San Diego County Sheriff's Department has ever received from BARONA or any of its representatives; or (b) simply state that 'I do not know of any money or things of value that the San Diego County Sheriff's Department has ever received from BARONA or any of its representatives.' Instead, Kluge now responds by stating only that 'I do not know.' Without more (e.g., I do not know of any . . .), the response remains evasive and ambiguous; e.g., it could mean that 'I do not know the specifics,' or 'I do not know how much the San Diego County Sheriff's Department has received.'" (Doc. No. 80 at 6 (emphasis in original).)

The Court's ruling: Kluge shall not be compelled to further respond. Plaintiff's continued hyper-critical analysis of Kluge's second response is a clear example of his pattern of conduct in this case. He is not satisfied with, "I do not know," and demands that Kluge state, "I do not know of any money or things of value that the San Diego County Sheriff's Department has ever received from BARONA or any of its representatives." However, the response Plaintiff demands requires Kluge to have actual knowledge that the Sheriff's Department either did or did not receive money or goods from Barona. Kluge states he has insufficient knowledge to answer this question either way. His answer is responsive to the interrogatory. Plaintiff may not dictate the exact wording of Kluge's response.

6. Garrett, Special Interrogatory No. 12

Plaintiff propounded the following interrogatory: "Please DESCRIBE what YOU were doing at all times during the INCIDENT." (Doc. No. 64-4 at 8.)

Defendant Garrett's first response: "See response to Interrogatory No. 1" (Id.)

The Court previously ordered: "DEFENDANT IS COMPELLED TO PROVIDE A FURTHER RESPONSE. Defendant must provide more detail regarding his actions at the time of the incident. However, to the extent that the response to Interrogatory 9 or 11 is sufficiently detailed, the response need not overlap." (Doc. No. 59 at 5.)

Garrett's second response after the Court's order: "I was observing Deputy Kluge assess Plaintiff for 5150 and listened as the casino security staff and Deputy Kluge requested Plaintiff to leave the premises. I walked outside with Plaintiff and Deputy Kluge to the patrol car. My complete statement to Internal Affairs and the IA Report have been provided to Plaintiff and my statement is summarized in the report at pp. 24-27." (Id.)

Plaintiff's objection: "First, the response is in violation of the court order that '[d]efendant must provide more detail. . . .' The few details actually provided are sketchy and conclusory at best. Second, respondent cannot incorporate by reference his 'complete statement to Internal Affairs,' given that: (a) the IA Report only contains a summary of that statement; (b) it has not been authenticated or properly incorporated into his response; and (c) the court order did not allow him to do so." (Id.)

Garrett's third response: "I was observing Deputy Kluge assess Plaintiff for 5150 and listened as the casino security staff and Deputy Kluge requested Plaintiff to leave the premises. I left the room several times to ask Barona staff about Plaintiff's statements regarding suicide. I walked outside with Plaintiff and Deputy Kluge to the patrol car. My complete statement to Internal Affairs and the IA Report have been provided to Plaintiff and my statement is summarized in the report at pp. 24-27." (Doc. No. 80, Ex. D at 2 (emphasis added to highlight new response).)

Plaintiff's second objection: "Garrett's Second Supplemental Response is obstreperous and in direct violation of the prior court order. The only change is the addition of the following sentence: 'I left the room several times to ask Barona Staff about Plaintiff's statements regarding suicide.' Garrett agreed, but has failed, to cure the defects addressed in the court order and set forth in Bashkin's [first objection]. The added information only exacerbates the defect, because this new 'fact' is even more sketchy than the existing ones.

Garrett was ordered and agreed to answer the interrogatory as written, which is to 'describe' in detail (as defined by Bashkin in the set of interrogatories served on Garrett) what he was doing 'at all times' [sic] during the incident.' Since none of Garrett's responses to this interrogatory claim an impaired recollection, and since Garrett's liability in this lawsuit is dependent upon his failure to 'intercede' when Kluge violated Bashkin's constitutional rights, if Garrett 'had an opportunity to intercede,' then his response remains woefully inadequate.

Moreover, if Garrett is going to rely upon his 'complete statement to Internal Affairs,' despite the court order, then he must set forth that 'complete statement to Internal Affairs,' in his verified response (e.g., as an attachment), not simply reference a summary of that statement." (Doc. No. 80 at 7 (footnote, emphasis, and citations omitted).)

The Court's ruling: Garrett's third response adds that he left the detention room several times but does not indicate when and for how long. This interrogatory is yet another example of a subject matter that is better suited for a deposition because Plaintiff could ask a series of questions about Garrett's whereabouts during the times he was absent as well as the duration of his absence each time. The deposition process allows for a back-and-forth question and answer process, whereas written discovery does not.

Nonetheless, Garrett's response is impermissibly general. Garrett is therefore ORDERED TO RESPOND IN GOOD FAITH. Specifically, Garrett is to set forth the following to the best of his ability:

(a) Whether he was present with Kluge and Plaintiff at all times from the beginning to the end of the contact with Plaintiff; (b) if he was not present with Kluge at all times, how many times he left Kluge's side; (c) for each time he left Kluge's presence, when during the contact his absence occurred; (d) how long he was absent each time; and (e) what he was doing when he was absent. If Garrett does not have the present ability to remember each and every instance he was away from Kluge, or for how long he was absent, he should state so but nonetheless address the above as his memory permits. As Garrett's third response to this interrogatory and the Court's guidance demonstrate, Defendants' exasperated representation that there simply is no further information they can provide, see Doc. No. 82 at 2, is disingenuous and not well taken.

7. San Diego County, Special Interrogatory No. 21 Plaintiff propounded the following interrogatory: "As of August 8, 2006, DESCRIBE all of the training the DEFENDANT DEPUTIES had received from the San Diego County Sheriff's Department with regard to investigating a suspected trespass, specifically including those situations wherein an individual fails to leave a property at the request of either the property owner or a law-enforcement [sic] officer." (Doc. No. 64-5 at 11.)

Defendant San Diego County's first response: "Objection: vague and ambiguous, indefinite as to time; seeks information not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence; requests material not in the custody or control of this responding party; seeks privileged information in a manner in violation of California Penal Code § 832.7 and Evidence Code § 1043; seeks disclosure of official information acquired in confidence; seeks information protected from disclosure under the provision of the Federal Privacy Act; disclosure of personnel, medical and similar files is an unwarranted invasion of personal privacy impermissible under the Freedom of Information Act and Government Code § 6254(c); seeks records and information compiled for law enforcement purposes which are exempt from disclosure because production could constitute an unwarranted invasion of privacy. Without waiving the objections, academy and in-service training." (Id.)

The Court previously ordered: "DEFENDANT IS COMPELLED TO PROVIDE A FURTHER RESPONSE. The request is limited in scope so that Defendant shall provide Plaintiff with a list of deputy training encompassing the issues of excessive force and unlawful search." (Doc. No. 59 at 4.)

San Diego County's second response after the Court's order: "Objection: vague and ambiguous, indefinite as to time; seeks information not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence; requests material not in the custody or control of this responding party; seeks privileged information in a manner in violation of California Penal Code § 832.7 and Evidence Code § 1043; seeks disclosure of official information acquired in confidence; seeks information protected from disclosure under the provision of the Federal Privacy Act; disclosure of personnel, medical and similar files is an unwarranted invasion of personal privacy impermissible under the Freedom of Information Act and Government Code § 6254(c); seeks records and information compiled for law enforcement purposes which are exempt from disclosure because production could constitute and unwarranted invasion of privacy. Without waiving the objections, academy and in-service training.

(1) California Commission on Peace Officer Standards and Training (POST) Basic Course Workbook Series Student Materials Learning Domain 20 Use of Force Version Two

(2) California Commission on Peace Officer Standards and Training (POST) Basic Course Workbook Series Student Materials Learning Domain 16 Search and Seizure Version Four

(3) San Diego County Sheriff Training Bulletin William D. Gore, Sheriff December 2009 'Back to Basics' Training Bulletin Series

(4) San Diego County Sheriff Training Bulletin William D. Gore, Sheriff September 2009 #2 Contacts, Detentions, Handcuffing & Pat Downs

(5) Field Training -- SEARCHES

(6) Field Training -- USE OF FORCE (Doc. No. 64-5 at 11-12.)

Plaintiff's first objection: "The objections are frivolous and must be stricken; the Court has ordered defendant to respond on the merits. In terms of 'describing' the training of the 'defendant deputies,' it is woefully inadequate, as it only describes a portion of the 'identity of the material' referencing or relating to the training. It does not describe, e.g., the dates, place and participant of the training, or even what the training consisted of. Moreover, the list of documents included in the supplemental response directly contradict, and are inexplicably omitted from, the corresponding list of documents set forth in defendant Kluge's supplemental response to Request for Production No. 16 (as well as this defendant's Supplemental Amended Response to Special Interrogatory No. 22)." (Doc. No. 64-5 at 12-13.)

San Diego County's's third response: "Objection: vague and ambiguous, indefinite as to time; seeks information not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence; requests material not in the custody or control of this responding party; seeks privileged information in a manner in violation of California Penal Code § 832.7 and Evidence Code § 1043; seeks disclosure of official information acquired in confidence; seeks information protected from disclosure under the provision of the Federal Privacy Act; disclosure of personnel, medical and similar files is an unwarranted invasion of personal privacy impermissible under the Freedom of Information Act and Government Code § 6254(c); seeks records and information compiled for law enforcement purposes which are exempt from disclosure because production could constitute and unwarranted invasion of privacy. Without waiving the objections, academy and in-service training.

(1) California Commission on Peace Officer Standards and Training (POST)

Basic Course Workbook Series Student Materials Learning Domain 20 Use of Force Version Two Table of Contents Chapter 1: Introduction to the Use of Force Overview Reasonable Force Authority to Use Force Chapter Synopsis Workbook Learning Activities Chapter 2: Force Options Overview Force Options Resistance Communication Chapter Synopsis Workbook Learning Activities Chapter 3: Use of Deadly Force Overview Considerations Regarding the Use of Deadly Force Justifiable Homicide by Public Officer Chapter Synopsis Workbook Learning Activities Chapter 4: Documenting Use of Force Overview Documenting the Use of Force Report Writing Tip Chapter Synopsis Chapter 5: Concept of Control in Use of Force Workbook Learning Activities Overview The Concept of Control in Use of Force Self Control Role of Initial and Ongoing Training Chapter Synopsis Workbook Learning Activities Chapter 6: Consequences of Unreasonable Force Overview Peace Officer and Agency Liability Failure to Intervene Intervention Techniques Factors Affecting Intervention Chapter Synopsis Workbook Learning Activities

(2) California Commission on Peace Officer Standards and Training (POST)

Learning Domain 16 Search and Seizure Version Four Table of Contents Chapter 1: Basic Principles of Search and Seizure Overview Fourth Amendment Protections Reasonable Exercise of Privacy Probably Cause to Search Chapter Synopsis Workbook Learning Activities Chapter 2: Warrant Searches and Seizures Overview Introduction to Warrant Searches Probable Cause to Search Execution of a Search Warrant Chapter Synopsis Workbook Learning Activities Chapter 3: Warrantless Searches and Seizures Overview Plain View Searches Warrantless Searches in General Cursory/Frisk/Pat Searches Consent Searches Exigent Circumstances Searches Searches Incident to Arrest Probation/Parole Searches Chapter Synopsis Workbook Learning Activities Chapter 4: Searches and Seizures Involving Motor Vehicles Overview Probable Cause Searches of Vehicles Plain View Seizures from Vehicles Protective Searches of Vehicles Consent Searches of Vehicles Searches of Vehicles Incident to Custodial Arrests Searches of Vehicles as Instrumentalities Vehicle Inventories Chapter Synopsis Workbook Learning Activities

(3) San Diego County Sheriff Training Bulletin William D. Gore, Sheriff December 2009 Back to Basics Training Bulletin Series "The Basics" include:

* Maintaining situational awareness

* Recognize and respond to danger signs

* Recognize and use cover 26 08CV1450

* Use clear and accurate radio ...


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