This matter comes before the court on the following motions, which the court has taken under submission on the briefing:*fn1 (1) plaintiff pro se prisoner Theron Kenneth Holston's ("plaintiff") motion to compel further production of documents from defendants Joseph DaBranca ("DaBranca") (erroneously sued as Joseph DeBanca) and Phillip L. Spadini ("Spadini") (erroneously sued as Phillip L. Spandini) (collectively, "defendants") (Doc. No. 48); (2) defendants' motion to compel plaintiff's further deposition and request for sanctions (Doc. No. 51) and plaintiff's related motion to strike a portion of defendants' reply (Doc. No. 56); (3) plaintiff's motion to compel further production of documents and responses to requests for admissions from defendants (Doc. No. 55) and related motion for leave to submit an addendum and declaration of plaintiff regarding the motion (Doc. No. 64); and (4) plaintiff's motion for a pretrial conference via video conferencing (Doc. No. 59). By this order, the court now rules on the motions, granting defendants' motion in part and denying plaintiff's motions for the reasons set forth below.
Plaintiff is proceeding on an amended complaint against defendants DaBranca and Spadini. Therein, he alleges as follows: On May 11, 2008, defendants stopped him in front of Walmart in Marysville, California. They asked him why he threw his bicycle, and he told them that he was upset because the store would not take back the recently-purchased bicycle because there was no mechanic on duty to inspect it. According to the complaint, defendants noticed alcohol in plaintiff's possession and also smelled alcohol and therefore proceeded to place plaintiff under arrest. Plaintiff did not resist and cooperated with defendants when they told him they were going to place him in a four-point restraint with handcuffs, leg restraints, and a waist chain. On the way to the Yuba County Jail, plaintiff acknowledges that he directed aggressive and abusive language towards defendants after they sided with Walmart about the bicycle dispute. However, plaintiff alleges that at no time did he make any threats or "challenge to violence." (Am. Compl. at 5a-5c [Doc. No. 12].)
When they arrived at the jail and parked in the garage, both defendants were outside of the vehicle when defendant DaBranca asked plaintiff, "You want to fight?" Plaintiff remained silent and did not respond. Then, defendant DaBranca opened the door and stepped back. Plaintiff stepped out and took one step toward DaBranca. According to plaintiff, DaBranca appeared angry and took hold of plaintiff's left arm with his left hand and put his right hand on plaintiff's left shoulder. At the same time, defendant Spadini put his right hand on plaintiff's right arm and his left hand on plaintiff's right shoulder. Together the defendants allegedly pushed plaintiff toward the vehicle with such force that plaintiff's head made contact with the trunk of the vehicle and caused a deep cut about three inches long across the center of his forehead. When plaintiff saw blood and felt the shock of pain, he tried to straighten up. Defendant DaBranca then held his clothing and waist chain and slung him to the ground. Both defendants then got on top of plaintiff, and defendant DaBranca used his knee to rub plaintiff's face in the cement causing a laceration on the left side of his face and lacerations around his head. (Am. Compl. at 5c-5d.)
Based on these allegations, plaintiff claims that defendants used excessive force against him in violation of the Fourth Amendment. He also asserts state law claims for assault and battery as well as negligence. In terms of relief, plaintiff requests monetary damages and a declaratory judgment. (Am. Compl. at 5a.)
Pursuant to Federal Rule of Civil Procedure 37, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to make the disclosure. Fed. R. Civ. P. 37(a)(1). A motion under Rule 37 is appropriate to compel any disclosure required by Rule 26(a), to compel a specific discovery response to an interrogatory, request for admission or request for documents or to compel a response to a deposition question. Fed. R. Civ. P. 37(a)(3)(A)-(C).
1. Motion for Pretrial Conference Via Video Conferencing
The court will first address plaintiff's motion for a pretrial conference since it raises the issue of the overall scheduling of the case.
Plaintiff requests a pretrial conference via video conferencing to seek "guidance" from the court as to various pretrial matters, including discovery, pretrial motion practice, the filing of motions in limine and the bifurcation of issues for trial. (Doc. No. 59 at 3.) While plaintiff lists a number of specific issues which he seeks to raise with the court, at bottom, it appears he is concerned about his ability to complete any necessary discovery and bring a dispositive motion, considering that the discovery and pre-trial motion deadlines have passed during the time the instant motions have been pending with the court. Pursuant to the court's March 24, 2011 Discovery and Scheduling Order, discovery in this action closed on July 15, 2011 and all pretrial motions were due on or before October 7, 2011. (Doc. No. 41.) The instant discovery motions were timely filed before these deadlines. No party filed a dispositive motion by the October deadline.
The deadlines have now passed, but good cause appearing, they will be extended in light of this order resolving the pending discovery issues. The parties may conduct further discovery until May 25, 2012; any motions necessary to compel discovery shall be filed by that date. All pretrial motions, except motions to compel discovery, shall be filed on or before August 31, 2012.The March 24, 2011 Discovery and Scheduling Order is amended in these respects only; its other terms remain in effect. (Doc. No. 41.)
As indicated in that order, "pretrial conference and trial dates will be set, as appropriate, following adjudication of any dispositive motion, or the expiration of time for filing such a motion." Some of the issues plaintiff raises are appropriately addressed at the time of the pretrial conference.*fn2 As is the court's custom, however, that conference is conducted on the file only, without appearance by either party. Accordingly, plaintiff's specific request for video conferencing, though unopposed by defendants, is denied.
2. Motion to Compel Plaintiff's Further Deposition
Plaintiff claims defendants violated his Fourth Amendment rights by using excessive force to restrain him following his arrest for public intoxication. By this motion, defendants seek to compel plaintiff's response to specific deposition questions; alternatively, as a sanction, defendants ask the court to deem certain records admissible, thereby obviating the need to conduct plaintiff's further deposition.
At his deposition, plaintiff refused to answer questions regarding his prior criminal convictions and contacts with law enforcement. Defendants move to compel plaintiff's responses on the following grounds:
First, they argue that information regarding plaintiff's prior convictions is discoverable for purposes of assessing whether those convictions involved acts of dishonesty, which is relevant to the veracity of plaintiff's testimony.
Second, plaintiff testified that he has never been involved in a physical altercation or threatened a peace officer. (Haynes Decl. [Doc. No. 52], Ex. O at 38-39.) However, his arrest reports indicate that he has been arrested dozens of times, many of which involved incidents where plaintiff threatened officers and/or physically resisted them. After this action was filed, defendants requested and received the arrest reports stemming from plaintiff's prior arrests and the corresponding court documents. Those documents evidence a long history of criminal activity, including incidents where plaintiff was arrested and/or charged with sexual battery, obstructing/resisting an officer, possession of a destructed device, disorderly conduct, assault with a deadly weapon, and battery. (Id. at Exs. B-G.) He was also convicted on charges of resisting an executive officer, possession of drug paraphernalia, making/delivering bad checks, impersonation to make another liable, possession of a controlled substance, possession of a firebomb, and robbery. (Id.) Many of the arrest reports detail combative and threatening behavior. During one incident, plaintiff, who was intoxicated, yelled profanities at officers, threatened them, ran at them when they opened his cell door and then later kicked at officers and medical staff. (Id. at Ex. F.)
Finally, defendants argue that information regarding plaintiff's criminal history also goes to damages. Defendants contend that plaintiff's numerous interactions with law enforcement, including countless arrests and convictions, may lessen any emotional or psychological upset resulting from the incident at-issue. They maintain further that the fact that plaintiff has been incarcerated for much of his adult life may also reduce any claim for lost wages. More specifically, plaintiff testified that he is seeking damages for a condition he allegedly suffered as a result of the incident, which makes him feel like he should "flee or get away" from officers when they approach. Plaintiff claims he never felt that way before the incident. (Id. at Ex. O at 132-33.) Defendants emphasize, however, that the arrest records indicate that plaintiff has a history of running from law enforcement officers. Defendants argue they should be permitted to explore those prior contacts to assess whether plaintiff's alleged condition actually predated his contact with defendants.
Ultimately, plaintiff refused to answer any questions regarding his prior convictions or interactions with law enforcement, including such basic questions as whether he has ever been convicted of a felony. (Id. at 40, 43, 138-41, 143-48.) Largely, his stated reason for refusing to answer was that he was "going to assert [a] Rule 30(B)(3)(a), which is a motion to terminate or limit that question." (Id. at 40:10-41:3. See also 42:21-22, 43:7; 129:2-141:18, 143:14-148:25.) In responding to the motion, plaintiff now maintains that by "asserting the Rule 30 motion," he was invoking the Fifth Amendment privilege against self-incrimination.
b. Ruling on Motion to Compel
Parties may object to deposition questions, but, in general, that does not absolve them from providing an answer. Fed. R. Civ. P. 30(c)(2). The only time a party may refuse to answer is when doing so is "necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)." Id. Here, contrary to his protestations now, plaintiff refused, in large part, to answer questions regarding his prior contacts with law enforcement, not based on a privilege, but because he intended to file a motion under Rule 30(d)(3). Indeed, plaintiff testified that he was not refusing to answer "based on a privilege" but rather that he was "going to make a motion for that protective order [referencing the Rule 30(d)(3) motion]." (Haynes Decl., Ex. O at 41:1-5.) A party may only file such a motion when the deposition is "conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party." Fed. R. Civ. P. 30(d)(3)(A).
Plaintiff's deposition was not conducted in "bad faith" or to unreasonably annoy or embarrass plaintiff. The deposition lasted only a few hours and the questions propounded by defense counsel were limited to discoverable information. For example, plaintiff first refused to answer a question when defense counsel asked whether he had ever been arrested for resisting or obstructing an officer. (Haynes Decl., Ex. O at 40:8-9.) That question came after plaintiff testified that he had never threatened or been involved in a physical altercation with law enforcement. (Id. at 39:6-8.) Plaintiff thereafter continued to assert Rule 30(d)(3) as the basis for refusing to answer questions regarding prior contacts with law enforcement. It is clear defendants were in no way acting in bad faith. Rule 30 does not provide plaintiff grounds for relief in this case.
Perhaps realizing this fact, plaintiff now, in response to the motion, maintains that he refused to answer all of the subject questions based on the Fifth Amendment privilege against self-incrimination. Defendants concede that plaintiff appropriately raised the privilege in one prior respect: In response to a question regarding a May 2010 charge of assaulting an officer, plaintiff stated at the deposition that he "plead the Fifth on that." (Id. at 39:11.) After plaintiff explained that the charges were referred to the District Attorney and were still pending, defense counsel moved on and respected plaintiff's invocation of the privilege. (Id. at 39:14-23.) Defendants contend, however, that in other respects, plaintiff improperly raised the privilege when he refused to answer questions about prior convictions.
"The only way the [Fifth Amendment] privilege can be asserted is on a question-by-question basis." United States v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995) (emphasis added). A blanket assertion of the privilege is insufficient. The privilege is waived if not affrimatively invoked, even if the waiver was not knowing or intelligent. United States v. Stringer, 535 F.3d 929, 938 (9th Cir. 2008). Here, the record is clear that at the time of deposition, in large part, plaintiff refused to answer the relevant questions based Rule 30(d)(3), not a claim of privilege--under the Fifth Amendment or otherwise. Because plaintiff did not invoke the privilege in response to the majority of specific questions, the privilege is waived and cannot be asserted now. Id.
Moreover, as to the questions pertaining to his prior convictions, plaintiff improperly asserted the privilege. The Fifth Amendment creates a privilege against compelled disclosure that could result in criminal liability. Hoffman v. United States, 341 U.S. 479, 486-88 (1951). It does not apply to offenses for which an individual has already been convicted or for acts that are not reasonably likely to result in criminal prosecution. Id.; Mitchell v. United States, 526 U.S. 314, 326 (1999). Plaintiff cannot rely on the privilege to refuse to answer questions about criminal convictions for which there are no pending matters or for criminal acts for which the statute of limitations has long run (as is the case for some of the conduct defendants sought to discuss). The court will therefore order plaintiff to respond to further deposition questions with these guidelines in mind.
Such an order is warranted since the requested information is discoverable. Plaintiff is incorrect that the information about his prior criminal convictions must be "relevant" or "admissible" to be discoverable. To be discoverable, the requested information need only be "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). In this case, information regarding plaintiff's prior criminal convictions and contacts with law enforcement are reasonably calculated to lead to the discovery of admissible information regarding the veracity of plaintiff's testimony, habit and damages.
Federal Rule of Evidence 609 provides that certain felony convictions are admissible as well as misdemeanor convictions that involve acts of dishonesty. Here, defendants properly seek to question plaintiff about his criminal history in order to assess whether any of his prior convictions would be admissible under Rule 609. See e.g. Englebrik v. Worthington Industries, 670 F. Supp. 2d 1048, 1051 (C.D. Cal. 2009) (granting the defendants' motion to compel the plaintiff's further deposition regarding his misdemeanor larceny conviction because without discovering those facts, the defendants could not assess whether the conviction was admissible under Rule 609). Similarly, defendants are entitled to explore the circumstances surrounding plaintiff's prior contacts with law enforcement in order to assess whether his assaultive behavior may be admissible as evidence of a habit. Fed. R. Evid. 404(b); 406. Plaintiff's criminal records indicate that he has repeatedly refused to cooperate with law enforcement and often becomes combative. Whether that behavior is sufficiently consistent to amount to a habit is unclear at this point because plaintiff refused to respond to defendants' inquiries.*fn3
While Rule 609 limits a party's ability to introduce prior convictions to attack a party's general character for truthfulness, it does not generally limit a party's ability to impeach a witness for false testimony. Plaintiff testified he has never been convicted for resisting or obstructing an officer; he also testified he has never threatened a peace office. Defendants are entitled to explore the accuracy of those statements, especially considering their position that plaintiff's criminal records indicate he has been arrested for and convicted of that very conduct. Fed. R. Evid. 607.
Finally, defendants should be permitted to conduct this discovery because plaintiff's prior contacts with law enforcement may bear on his lost wages or emotional distress damages claims. While plaintiff now maintains that he will "release" defendants from any claim for "permanent or long lasting emotional or psychological upset," he still intends to seek damages for the "temporary and initial" emotional and psychological upset caused by the incident. Plaintiff's ...