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Burns v. City of Concord

United States District Court, N.D. California, San Francisco Division

March 3, 2014

JOHN BURNS et al., Plaintiffs,
CITY OF CONCORD, et al., Defendants.


LAUREL BEELER, Magistrate Judge.


This civil rights lawsuit alleges that Defendants used excessive force that resulted in the death of Charles Burns and the wrongful arrest of Bobby Lawrence. See Complaint, ECF No. 1.[1] Plaintiffs ask for expedited discovery before the Rule 26(f) conference. See Ex Parte Request for Expedited Discovery, ECF No. 9. For the reasons stated below, the court denies the request without prejudice to raising any subsequent discovery dispute.


Plaintiffs filed the lawsuit on February 4, 2014. See ECF No. 1. The court issued the summonses the next day. See ECF No. 3. Plaintiffs have not served Defendants yet. See Ex Parte Application, ECF No. 9 at 6, ¶ 17. In their early discovery request, Plaintiffs ask for the relevant police reports, audio recordings of witnesses, videos and photographs of the scene, relevant reports from the District Attorneys' offices in Concord and Antioch, the Coroner's reports and video and audio recordings, the Sheriff's reports and recordings, and similar information. Id. at 1-3. In the declarations that are part of the request, Plaintiffs' counsel establishes a basis for concluding that the reports and materials exist, describes his unfruitful efforts to get them from the District Attorneys' offices and the police departments, and represents that he is agreeable to a protective order. See id. at 4-6. He also describes his plans to amend the complaint to add parties once he learns the identity of the Doe defendants, and he describes how early discovery of the reports avoids delay. See id. at 6. He notes that in response to a recent request, he learned that the law firm of McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP represents the agencies. Id. at 5, ¶ 8. The case management conference is set for May 22, 2014, which means that the last day for the Rule 26(f) conference is May 1, 2014. See ECF No. 4.


A court may authorize early discovery before the Rule 26(f) conference for the parties' and witnesses' convenience and in the interests of justice. Fed.R.Civ.P. 26(d). Courts within the Ninth Circuit generally consider whether a plaintiff has shown "good cause" for the early discovery. See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 15, 2010); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002); Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at * 2 (E.D. Cal. June 9, 2010); Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. Ariz. 2001) (collecting cases and standards).

When the identity of defendant is not known before a complaint is filed, a plaintiff "should be given an opportunity through discovery to identify the unknown defendant, unless it is clear that discovery would not uncover the identity, or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). In evaluating whether a plaintiff establishes good cause to learn the identity of a Doe defendant through early discovery, courts examine whether the plaintiff (1) identifies the defendant with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will permit service of process. Columbia Ins. Co. v., 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

Here, the discovery is relevant and would help identify the Doe defendants earlier. That being said, the better way to get the discovery at this stage is first to serve the named defendants and then to talk with the McNamara law firm about the timing of document discovery and the interplay with case deadlines, including the filing of an amended complaint and the timing of the responsive pleading to that complaint. The court does not find good cause on this record.


The court denies the motion for expedited discovery without prejudice to the renewal of any discovery dispute (if there is one), which must be raised via the procedures in the undersigned's standing order at ECF No. 4-1.

This disposes of ...

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