United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL DISCOVERY FROM CITY OF SAN DIEGO AND RAYMOND WETZEL [ECF NO. 152]
RUBEN B. BROOKS, Magistrate Judge.
On September 9, 2013, Plaintiff Paul Hupp filed a "Motion to Compel Discovery [from] the City of San Diego and Raymond Wetzel [ECF No. 152]." Defendants opposed this motion on October 15, 2013 [ECF No. 173], and Hupp filed his reply on October 21, 2013 [ECF No. 180]. The Court determined that the matter was suitable for resolution without oral argument, submitted the motion on the parties' papers pursuant to the Local Civil Rule 7.1(d), and vacated the motion hearing [ECF No. 181]. For the following reasons, Plaintiff's Motion to Compel is GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND
Plaintiff Paul Hupp, proceeding pro se, commenced this action on February 28, 2012, under the provisions of 42 U.S.C. § 1983. (Compl. 1, ECF No. 1.) Plaintiff's Third Amended Complaint contains twelve causes of action and was filed on August 28, 2012 [ECF No. 64], naming as Defendants San Diego County,  the City of San Diego, the City of Beaumont,  James Patrick Romo,  Raymond Wetzel, William Kiernan,  Peter Myers, and Joseph Cargel. (Third Am. Compl. 1, ECF No. 64.) Hupp's lawsuit arises from contempt of court charges brought against him and his ensuing conviction in San Diego Superior Court in 2011. ( Id. at 4-5, 7-8.)
Plaintiff alleges that in November 2010, Jeffrey Freedman obtained a three-year restraining order against him in San Diego Superior Court. ( Id. at 4.) In July 2011, Freedman brought contempt charges against Hupp for sending letters to Freedman in violation of the restraining order. ( Id. at 5.) Defendant William Kiernan, an attorney from the San Diego County Office of the Assigned Counsel, was appointed to represent Plaintiff. (Id.) Hupp alleges that Kiernan's failure to investigate, request discovery, or communicate with Hupp amounted to ineffective assistance of counsel. ( Id. at 6-7.) Plaintiff also claims that Defendants performed DNA and fingerprint tests on the letters and envelopes allegedly sent by him, and wrongfully withheld exculpatory forensic evidence until February 2012, when they produced the evidence in another court case. ( Id. at 11-12.)
Hupp was convicted and sentenced to twenty-five days in custody and fined $5, 000; he asserts that this conviction was based on insufficient evidence. ( Id. at 7.) Plaintiff also alleges that his trial judge improperly denied him custody credits under California Penal Code section 4019. ( Id. at 8.)
On January 3, 2012, Hupp reported to the San Diego County Sheriff's Department to serve his twenty-five day sentence. ( Id. at 9.) Plaintiff claims that he told the Sheriff's Department personnel to apply section 4019 custody credits to his sentence, but they refused to do so. (Id.) Hupp also alleges he was denied access to the law library and was prevented from filing legal papers. ( Id. at 10-11.)
Plaintiff contends that Defendants never informed him that the San Diego County District Attorney's office, San Diego Police Department, Deputy District Attorney Romo, and Detective Wetzel were investigating and assisting Deputy Attorney General Drcar in prosecuting the November 2011 civil contempt proceedings against Hupp. ( Id. at 7, 11.) He also asserts that Defendants failed to disclose exculpatory DNA and fingerprint evidence obtained from the letters Freedman received, in violation of Hupp's due process rights under Brady v. Maryland, 373 U.S. 83 (1963). ( Id. at 11-12.)
These allegations are the basis of Plaintiff's claims for violation of his civil rights; conspiracy to withhold Brady evidence; interference with legal mail and free speech; unlawful detention; intentional infliction of emotional distress; as well as gross negligence in the hiring, training, supervision, and retention of prosecutors and peace officers. ( Id. at 12-29.) Hupp also alleges that Defendants' actions caused him emotional and psychological injuries, embarrassment, humiliation, shame, fright, fear, and grief. ( Id. at 14, 20-21.) For his injuries, Plaintiff seeks compensatory and punitive damages exceeding $75, 000, as well as declaratory and injunctive relief. ( Id. at 27-30, 35-37.)
II. LEGAL STANDARDS
A. Motion to Compel
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Rule 37 of the Federal Rules of Civil Procedure enables the propounding party to bring a motion to compel responses to discovery. Fed.R.Civ.P. 37(a)(3)(B). The party resisting discovery bears the burden of opposing disclosure. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992).
As the moving party, Hupp carries the burden of informing the court of (1) which discovery requests are the subject of his motion to compel, (2) which of the defendants' responses are disputed, (3) why the responses are deficient, (4) the reasons defendants' objections are without merit, and (5) the relevance of the requested information to the prosecution of his action. See, e.g., Brooks v. Alameida, No. CIV S-03-2343-JAM-EFB P, 2009 WL 331358, at *2 (E.D. Cal. Feb. 10, 2009) ("Without knowing which responses plaintiff seeks to compel or on what grounds, the court cannot grant plaintiff's motion."); Ellis v. Cambra, No. CIV 02-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008) ("Plaintiff must inform the court which discovery requests are the subject of his motion to compel, and, for each disputed response, inform the court why the information sought is relevant and why Defendant's objections are not justified.").
B. Pro Se Litigants
"In general, pro se representation does not excuse a party from complying with a court's orders and with the Federal Rules of Civil Procedure." Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856-57 (8th Cir. 1996) (citing Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983)). Accordingly, plaintiffs who choose to represent themselves are expected to follow the rules of the court in which they litigate. Carter v. Comm'r, 784 F.2d 1006, 1008-09 (9th Cir. 1986); see also Bias v. Moynihan, 508 F.3d 1212, 1223-24 (9th Cir. 2007) (finding that district court did not abuse its discretion by failing to consider the pro se litigant's untimely filings). "[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).
Plaintiff's brief and exhibits in support of his motion to obtain discovery from Defendants City of San Diego and Raymond Wetzel total more than seventy pages [ECF No. 152]. Despite this voluminous submission, Hupp fails to articulate how Defendants' objections to his requests are not justified.
A. Motion to Compel Defendant City of San Diego
Plaintiff served six requests for production on Defendant City of San Diego. (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 23-26, ECF No. 152.) The City made general and some specific objections to the requests, but it produced documents in response to requests 1 and 4. ( Id. at 44-45.) The Court analyzes each request in turn.
1. Request for production no. 1
Hupp's first request asks the City for "[a]ny and all documents which are in your possession concerning the investigation of Plaintiff, and more fully set forth in the Complaint, including Plaintiff's civil contempt case; Superior Court Case Number 37-2010-00102264-CU-HR-CTL, and Plaintiff's criminal case; Superior Court Case Number SCD238651." ( Id. at 23-24.) Plaintiff defined the request as follows:
This shall include at a minimum, but is not limited to:
a. Any and all reports or forms describing any and all aspects of the investigation;
b. Any and all investigation reports, including fingerprint and DNA evidence;
c. Any and all audio, video and digital recordings;
d. Any and all statements of WETZEL concerning or mentioning Plaintiff, including any and all email without regard to whether said email account/s are work or personal;
e. Any and all inter-office memos, intra-office memos, reports, letters, correspondence, computerized records or writings that mention, concern, discuss or pertain to Plaintiff;
f. Statements and/or interviews of any witnesses, informants, the Plaintiff, Deputy District Attorneys, lawyers, police agents and any Peace Officers including but not limited to WETZEL, or other persons who had any role or contact with WETZEL concerning the investigation of Plaintiff, including any supervisor/s.
(Id. at 24.)
The City objects to this request and argues that "[it] is compound and may call for information that is protected under the attorney client and attorney work product privileges." ( Id. at 44.) Nevertheless, the Defendant City of San Diego produced seven nonprivileged items from the San Diego Police Department relating to criminal case number 11051250: (1) a "CAD Report" taken on December 29, 2011, for incident P11120050611; (2) 911 communications tapes for the incident; (3) a "Crime Report" also taken on December 29, 2011; (4) an investigator's follow-up report; (5) an "Arrest Report" taken on January 11, 2012; (6) a chain of custody report; and (7) lab files. ( Id. at 44-45.) Despite its objections, "the City still produced the entire SDPD case file pertaining to the subject incident...." (Def. City San Diego & Raymond Wetzel's Opp'n 3, ECF No. 173.)
Hupp contends that the City's privilege objection constitutes "pretext claims, " positing that "[t]he proper response [by the City to Hupp's first request] would have been to file for a protective order." (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 5, ECF No. 152.)
Plaintiff has not demonstrated that the City's responses to his requests are inadequate. Hupp asks for "[a]ny and all reports or forms describing any and all aspects of the investigation." ( Id. at 24.) The City responded by producing the entire case file for the incident. (Def. City San Diego & Raymond Wetzel's Opp'n 3, ECF No. 173.) The production included five reports, 911 and communications tapes, and lab files. ( Id. at 4.) Hupp has not articulated why these items are insufficient.
Plaintiff's demand for "[a]ny and all statements of WETZEL concerning or mentioning Plaintiff, including any and all email without regard to whether said email account/s are work or personal, " (id. at 3), is troubling. First, Hupp has not demonstrated how the requested statements meet the relevance standard under Federal Rule of Civil Procedure 26(b)(1), given Defendant Wetzel's limited involvement in this case. Next, Plaintiff has not met his burden of showing that all of the requested statements, particularly those contained in Wetzel's personal e-mail accounts, are within the custody and control of the City. See United States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) ("The party seeking production of the documents... bears the burden of proving that the opposing party has such control.") (citing Norman v. Young, 422 F.2d 470, 472-73 (10th Cir. 1970)).
Plaintiff's request also seeks "[a]ny and all inter-office memos, intra-office memos, reports, letters, correspondence, computerized records or writings that mention, concern, discuss or pertain to Plaintiff." (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 24, ECF No. 152.) In addition, it includes "[s]tatements and/or interviews of any witnesses, informants, the Plaintiff, Deputy District Attorneys, lawyers, police agents and any Peace Officers including but not limited to WETZEL, or other persons who had any role or contact with WETZEL concerning the investigation of Plaintiff, including any supervisors." (Id.) These requests are overbroad, and they call for production of items that may be protected by the attorney-client privilege and attorney work-product doctrine. See Hickman v. Taylor, 329 U.S. 495, 510 (1947) ("Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney."); see also Upjohn Co. v. United States, 449 U.S. 383, 390 (1981) ("[Attorney-client] privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.") (citing Trammel v. United States, 445 U.S. 40, 51 (1980); Fisher v. United States, 425 U.S. 391, 403 (1976)).
It is unclear whether the City is claiming that it possesses responsive documents that are protected from production by the attorney-client privilege and the attorney work-product doctrine. Initially, Defendant's discovery response was that Plaintiff's request was compound and "may call for information that is protected under the attorney client and attorney work product privileges." (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 44, ECF No. 152 (emphasis added).) In opposing the Motion to Compel, the City is less equivocal. The Defendant argues that Hupp "sought information that is protected under the attorney client and attorney work product privileges." (Def. City San Diego & Raymond Wetzel's Opp'n 3, ECF No. 173.)
A party resisting discovery must do more. If this Defendant is "asserting a claim of attorney-client privilege or attorney work product protection[, ] [it] must make a prima facie showing that those doctrines apply, typically by submitting a Privilege Log." In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992).
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