United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT AND CROSS CLAIMANT ENSIGN'S MOTION TO COMPEL DISCOVERY PURSUANT TO FED.R.CIV.P. 37; DENYING REQUEST FOR AN ORDER OF CONTEMPT AND MONETARY SANCTIONS PURSUANT TO FED.R.CIV.P. 45 AGAINST DEPUTY CITY ATTORNEYS [DOC. NO. 102]
WILLIAM V. GALLO, Magistrate Judge.
Pending before the Court is Defendant and Cross-Claimant, Mr. Jason Ensign's (hereinafter "Ensign") Motion to Compel Discovery Pursuant to Federal Rule of Civil Procedure 37, and Request for an Order of Contempt and for Monetary Sanctions Pursuant to Rule 45 Against Deputy City Attorneys Rayna Stephan and Eric Pooch. (Doc. No. 102.) For the reasons set forth below, the Court hereby GRANTS IN PART and DENIES IN PART Ensign's Motion to Compel Discovery, and DENIES Ensign's Request for an Order of Contempt and for Monetary Sanctions.
This case involves an incident that occurred on November 29, 2009, at a football game at Qualcomm Stadium. (Doc. No. 84-1 at 2; Doc. No. 102 at 4.) It is alleged that a scuffle ensued after security guards at the game attempted to evict Ensign for displaying an obscene hand gesture. (Doc. No. 84-1 at 2.) The security guards took custody of Ensign and then transferred custody to the San Diego Police Department. Id; Doc. No. 102 at 2. Ensign alleges that he was falsely arrested and battered at Qualcomm stadium by a team of Elite Security guards. Id.
In connection with this incident, Ensign was charged with seven crimes involving battery and vandalism under $400. (Doc. No. 84-1 at 2.) The prosecutors handling the case were Andres Carnahan and Jonathan Lapin. (Doc. No. 102 at 4.) After a bench trial, all counts against Ensign were dismissed. Id . The court determined that the San Diego Municipal Code regulating fan behavior at Qualcomm Stadium was unconstitutionally vague and, hence unenforceable. Id; Doc. No. 84-1 at 3. Ensign filed a Petition for a Finding of Factual Innocence. (Doc. No. 102 at 4.) City Attorney Jan Goldsmith argued against Ensign's motion. Id . The court found Ensign to be factually innocent. Id.
B. RELEVANT DATES
On July 2, 2010, Plaintiff and Cross-Defendant, Mr. Cameron Baker (hereinafter "Baker"), filed an action in state court against Ensign. (Doc. No. 4-1 at 8.) On June 2, 2011, Ensign filed a civil rights Cross-Complaint and a Third Party Complaint against various Third Party Defendants. (Doc. No. 105 at 1.) On September 6, 2011, Third Party Defendant City of San Diego (hereinafter "the City") removed the action to this Court. (Doc. No. 4-1 at 8.) On March 31, 2014, Ensign filed a Second Amended Cross Complaint ("SACC") and Second Amended Third Party Complaint against Third Party Defendants the City, San Diego Police Chief William Landsdowne, and David Spitzer. (Doc. No. 82.)
On November 20, 2013, this Court held a Case Management Conference and set the fact discovery deadline for May 23, 2014, and expert discovery deadline for October 1, 2014. (Doc. No. 67 at 2.) On April 23, 2014, Ensign served the City with deposition notices for prosecutors Goldsmith, Lapin, and Carnahan. (Doc. No. 109-4 at 3.) On April 28, 2014, Ensign served a subpoena duces tecum on the Criminal Division of the San Diego City Attorney's Office, seeking a copy of the People's "entire file" in People v. Ensign, M099248, to be produced by May 6, 2014. (Doc. No. 102-1 at 2, 4-5; Doc. No. 109 at 2-3.) Specifically, the subpoena duces tecum requested,
The entire file in possession of the criminal division of the San Diego City Attorney's office including, but not limited to, all police records, investigative reports, witness statements, restitution requests, color photographs, video and audio recordings, notes of interviews with witnesses, medical records, video and/or audio recordings of parties/witnesses, communications in any form to and from prosecutors, communications to and from City Attorney Jan Goldsmith and any member of the Charger's organization, the NFL organization and/or Elite Security during the pendency of the criminal case and through the Motion for Finding of Factual Innocence, communications to and from City Attorney Jan Goldsmith and any member of the prosecution team during the pendency of the criminal case and through the Motion for Finding of Factual Innocence, prosecutor notes of witness interviews, communications in any form to and from prosecutors and any of Baker's civil attorneys, any and all records/files/documentation not provided to the defense of Ensign during the pendency of the criminal case and through the Motion for Finding of Factual Innocence, memoranda pertaining to People v. Ensign, San Diego Superior Court Case No. M099248. (Doc. No. 102-2 at 4) (emphasis in original).
On April 29, 2014, Ms. Stephan sent Ensign's counsel an email objecting to the depositions of prosecutors Goldsmith, Lapin, and Carnahan. (Doc. No. 102 at 5.) Counsel met and conferred, but it should be noted that Ensign's counsel claims that there were no meaningful meet and confer efforts. (Doc. No. 102 at 5.) On May 6, 2014, the Court was notified of a discovery dispute in this case regarding the three deposition notices. (Doc. No. 90 at 1.) Therefore, on May 6, 2014, this Court held a telephonic Discovery Conference with counsel, at which time Ms. Stephan stated her objections to the depositions on the basis of prosecutorial immunity, that the City attorney was a policy maker, and that since Ensign's counsel had subpoenaed the criminal records from the state case, there was no reason to depose the three prosecutors. Id; Doc. No. 102 at 5. This Court ordered the parties to file a joint motion about the dispute within forty-eight hours. (Doc. No. 102 at 5.)
Also on May 6, 2014, Ensign's counsel granted the Criminal Division a continuance for the production of the subpoenaed case file until May 12, 2014, because the Criminal Division was having difficulty finding the file on the Motion for Finding of Factual Innocence. (Doc. No. 102 at 5; Doc. No. 109 at 3.)
On May 7, 2014, Ms. Stephan was authorized by Mr. Bamberg, Assistant City Attorney in the Civil Division, to contact the Criminal Division for the sole purpose of inquiring whether part of the case file was missing so that Ms. Stephan could accurately assess what objections were available to the depositions of the prosecutors. (Doc. No. 109-4 at 3.) Also on May 7, 2014, Ms. Stephan indicated to Mr. Mark Skeels, supervising Deputy City Attorney in the Criminal Division, that the sole purpose of her call was to verify whether the Criminal Division had Ensign's entire case file, as she was dealing with another issue with the Court and the subject had been raised by Ensign's counsel. Id.
On May 12, 2014, this Court denied Ensign's request to take the depositions of the three prosecutors, and ordered the City to produce all records sought by the subpoena duces tecum. (Doc. No. 90 at 6.) May 12, 2014 was also the continued deadline for the Criminal Division to respond to the subpoena duces tecum. (Doc. No. 102 at 5.) However, on May 12, 2014, the City failed to produce any responsive documents or objections to the subpoena duces tecum. Id. at 6.
On May 13, 2014, after the deadline to respond to the subpoena duces tecum had expired, Ms. Stephan received a voicemail from Mr. Pooch, an attorney in the Criminal Division, who related that the Criminal Division was served with a subpoena for Ensign's criminal case file and that Ensign's counsel was requesting it from the Criminal Division's Custodian of Records, Ms. Roselyn Aquino. (Doc. No. 109-4 at 4.) Mr. Pooch inquired about how the Criminal Division should respond and whether Ms. Stephan actually represented them. Id . Ms. Stephan stated that she relayed the message to Mr. Bamberg for a response. Id.
Also on May 13, 2014, Ms. Stephan brought to Mr. Bamberg's attention this Court's Order directing that the criminal case file be produced immediately. (Doc. No. 109-4 at 4; Doc. No. 90 at 6.) Ms. Stephan asserts that she told Mr. Bamberg about the Order so that it could be communicated to the Criminal Division for compliance with both the Order and subpoena duces tecum. (Doc. No. 109-4 at 4.) On May 13, 2014, Ms. Stephan also sent an email to Mr. Pooch with a copy of the Court's Order. Id . On May 14, 2014, Ms. Stephan had a teleconference with Ms. Marlea Dell'Anno, Assistant City Attorney in the Criminal Division. (Doc. No. 109-4 at 5.) Ms. Dell'Anno indicated that there "seemed to be confusion on the part of the Criminal Division about the Civil Division representing them for the subpoena." Id.
On May 15, 2014, Mr. Pooch made a copy of Ensign's criminal case file, and redacted the contents of the prosecutor's trial report and witness telephone numbers. Id. at 3. On May 15, 2014, Mr. Pooch provided Ensign's criminal case file to Ensign's counsel. Id . Also on May 15, 2014, Mr. Pooch emailed Ensign's counsel and stated that he had produced records per the subpoena, minus the redacted portions. (Doc. No. 102 at 6.) Ensign's counsel responded that all objections had been waived. Id . Mr. Pooch then stated that the Civil Division had told him that they were objecting, which is why he did not respond to the subpoena in a timely manner. Id . Ensign's counsel asserts that Mr. Pooch stated that he was told later that it was he who was supposed to object. Id . Ensign's counsel states that she asked Mr. Pooch if Ms. Stephan had issued the directives. Id . Ensign's counsel alleges, " He stated it was, though not directly. " Id .; Declaration of Mary Frances Prevost (emphasis in original).
On May 16, 2014, Mr. Pooch and Ensign's counsel engaged in informal meet and confer efforts because Ensign's counsel believed the City's production to be insufficient. (Doc. No. 109 at 3.) During meet and confer efforts, Mr. Pooch asked Ensign's counsel if she would consider accepting the redacted documents under a protective order. Counsel agreed, and suggested that the two speak again on the ollowing Tuesday to resolve the issues. (Doc. No. 102 at 6-7.)
Also, on May 16, 2014, Ensign's counsel emailed Mr. Pooch, stating, "If indeed, Rayna Stephan through whatever channels interfered with the subpoena, however, that would not preclude production, but it in my opinion would mitigate against any court sanctions against you for non[-]compliance." (Doc. No. 109-9 at 3.) On May 21, 2014, Mr. Pooch responded to Ensign's counsel's email, stating, "I reviewed your email and I wanted to take the opportunity to correct one point. I believe I characterized the issue with the Civil Division as a miscommunication or confusion on our part, not that an attorney Interfered'[.]" Id.
On May 22, 2014, Ms. Stephan learned that the Civil Division had a copy of the missing Findings of Factual Innocence folder from the Criminal Division, which had been obtained via a public records request. (Doc. No. 109 at 3.) Also on May 22, 2014, Ensign filed before the District Judge an Ex Parte Motion for Reconsideration and Review of this Court's Ruling denying the request to enforce the deposition subpoenas of the three prosecutors. (Doc. No. 95.) As of the date of the filing of this Order, Ensign's Ex Parte Motion remains pending. Id.
Also on May 22, 2014, after a series of emails between Ensign's counsel and attorneys for Baker and non-party Elite pertaining to a dispute over subpoenas served on the Chargers and Elite, Ms. Stephan received an email from Ensign's counsel's office notifying her of a teleconference with the Court. (Doc. No. 109-4 at 5.) Ms. Stephan claims that there was no mention of any issue pertaining to the production of Ensign's criminal case file. Id . Ms. Stephan states that she therefore believed that the Court's conference was about the disputed subpoenas issued to the Chargers and Elite. Id.
On May 23, 2014, Mr. Pooch produced the Finding of Factual Innocence to Ensign's counsel. (Doc. No. 67 at 2; Doc. No. 109 at 4.) On May 26, 2014, a disc of documents and a Declaration from Mr. Pooch arrived at Ensign's counsel's office, stating that the "missing" file was held by Ms. Stephen. (Doc. No. 102-1 at 4.)
As of June 2, 2014, the date that Ensign filed the instant Motion, Ensign claimed that the City had not yet produced unredacted portions of his criminal file. (Doc. No. 102 at 7.) Ensign also claims that the City has not produced communications to and from City officials and the NFL, the Charger's and Elite personnel, ...