United States District Court, E.D. California
For Sukhwinder Kaur, Kulbinder Kaur Sohota, Sarabjit Singh Shergill, Plaintiffs: Mark E. Merin, Paul Hajime Masuhara, III, LEAD ATTORNEYS, Law Office of Mark E. Merin, Sacramento, CA.
For City of Lodi, City of Lodi Police Department, Mark Helms, Defendants: Amie Collins McTavish, Bruce Alan Kilday, LEAD ATTORNEYS, Angelo Kilday and Kilduf, Sacramento, CA.
For Scott Bratton, Adam Lockie, Defendants: Mark Emmett Berry, LEAD ATTORNEY, Mayall Hurley Knutsen Smith and Green, Stockton, CA.
ORDER RE MOTION TO COMPEL AND MOTION FOR PROTECTIVE ORDER
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
This is an excessive force action brought by the estate of Parminder Singh Shergill (the decedent), Sukhwinder Kaur (decedent's mother), and decedent's two siblings, against the two City of Lodi police officers who shot the decedent to death, along with the City, its police department and the Chief of Police. The case is proceeding on the Second Amended Complaint. ECF No. 47.
Pending are (1) plaintiff Sukhwinder Kaur's motion to compel discovery, and for sanctions against defendants, and (2) defendants' motion for a protective order to prevent the public dissemination of materials they have produced in discovery. The parties have filed separate Joint Statements for each motion. ECF Nos. 59 & 60.
This matter came on for hearing on January 7, 2015 before the undersigned. Mark Merin and Paul Masuhara appeared for plaintiffs. Amie McTavish appeared for City of Lodi, the City of Lodi Police Department, and Mark Helms. Derick Konz appeared for Scott Bratton and Adam Lockie.
I. RELEVANT BACKGROUND
A. Factual Allegations
According to the Second Amended Complaint, the decedent, Parminder Singh Shergill, was an honorably discharged, disabled Gulf War veteran who suffered from post-traumatic stress disorder and depression. Complaint (ECF No. 47), Introduction at 2. On the morning of January 25, 2014, decedent failed to take his prescribed medication, and became anxious, so his family wanted him to visit the Veteran's Affairs Clinic (" VAC") in French Camp, California for treatment. Complaint, Introduction at 2 & ¶ 18. As they had done in the past, they contacted the City of Lodi Police Department to request assistance for the transportation of the decedent to the VAC. Complaint, Introduction at 2. City of Lodi police officers Scott Bratton and Adam Lockie responded to the call at decedent's residence, but were informed that he had gone for a walk, a morning routine for him. Id. The officers left the residence after informing the decedent's family that they would talk to the decedent if they saw him. Id.
Bratton and Lockie located the decedent in a park two blocks away. Id. They confronted decedent, attempting to stop him for questioning, and proceeded to follow him when he did not answer their questions as he walked toward home. Id. When the decedent reached the street on which he lived, Bratton and Lockie drew their firearms and confronted the decedent by yelling at him. Id. As the decedent turned around to face the officers, he held his hands in the air and stated " Don't shoot!" Complaint, Introduction at 2 & ¶ 44. The officers then opened fire, shooting the decedent 14 times, even as he fell to the street, killing him. Complaint ¶ 45. The decedent was unarmed and did not threaten the officers. Complaint, Introduction at 2. Nevertheless, the officers reported that decedent had charged at them with a knife immediately prior to the shooting. Complaint ¶ 52.
B. Procedural Background
Plaintiffs filed their original complaint April 3, 2014. ECF No. 1. After two motions to dismiss and partial dismissals with leave to amend, the case is now proceeding on the Second Amended Complaint (" complaint") (ECF No. 47). Plaintiffs are proceeding on their claims under (1) 42 U.S.C. § 1983 for violation of rights guaranteed by the Fourth and Fourteenth Amendments to the U.S. Constitution, (2) Title II of the Americans with Disabilities Act (" ADA"), 42 U.S.C. § 12101 et seq .; and (3) the California State Constitution and other California laws.
The parties have stipulated to an order, pursuant to which (1) the City Defendants (City of Lodi, police department and chief of police), will produce police officer personnel files, and (2) plaintiffs will not publicly disclose those files without first giving defendant notice and an opportunity to file a motion for a protective order prohibiting public disclosure of the files. ECF No. 46.
Two separate motions to dismiss are pending before the Honorable Garland E. Burrell, Jr., one filed by the Officer Defendants and the other by the City of Lodi defendants. ECF Nos. 13-14. Judge Burrell has taken those motions under submission. ECF No. 57.
The discovery deadline is February 18, 2016, and trial is set for September 27, 2016. See ECF No. 24.
II. MOTION TO COMPEL
A. Legal Standards
The scope of discovery under Federal Rule of Civil Procedure 26(b) is broad: " Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). " Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. As the Supreme Court reiterated in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), relevance " has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." 437 U.S. at 351 (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).
Pursuant to Rule 37(a), a party propounding discovery or taking a deposition may seek an order compelling responses when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed.R.Civ.P. 37(a)(3)(B). " [A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a) (4). " It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)), cert. dismissed, 506 U.S. 948, 113 S.Ct. 454, 121 L.Ed.2d 325 (1992).
" The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). Further, under Fed.R.Civ.P. 26(e)(1)(A), a party who has responded to a request for production must supplement or correct its response " in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect . . .."
" [M]atters going to discovery procedural issues are entirely federal in nature." James v. Kiewit Infrastructure West Co., 2013 WL 3863906, at *2 (E.D. Cal. 2013) (Claire, M.J.) (citing Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Federal Civ. Pro. Before Trial § 1:284 (2013)). Discovery (even in a diversity case), " as a procedural matter, is governed in a federal court only by the Federal Rules of Civil Procedure and state discovery practices are irrelevant." American Ben. Life Ins. Co. v. Ille, 87 F.R.D. 540, 542 (D.C. Okl. 1978) (citing 8 Wright & Miller, Federal Practice and Procedure: Civil § 2005 (1970)). See also Eureka Financial Corp v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 182 n.5 (E.D. Cal. 1991) (Hollows, M.J.); see Fed.R.Civ.P. 26(b)(5). Determination of relevance, for example, is a federal matter. James, 2013 WL 3863906, at *2.
1. Dispute Background
Plaintiffs seek to compel (a) production of documents responsive to plaintiff Kaur's Requests for Production of Documents, Set One, submitted to the City Defendants, and (b) further responses to the Officer Defendants' deposition questions, which were terminated by their counsel. Plaintiff Kaur served requests for production on the City Defendants and the Officer Defendants requesting, among other things, " [p]ersonnel files" relating to the Officer Defendants.
In their September 22, 2014 initial responses to the discovery requests, defendants asserted that the document requests were " overbroad in terms of both subject matter and time." In addition, defendants asserted that they would not produce any records from the officer defendants' personnel files on the grounds that they are " confidential and privileged information pursuant to [Cal.] Evidence Code § 1040 et seq. and Penal Code § 832.7 and 832.8." See, e.g., ECF No. 60-1 at 75.
On October 14, 2014, defendants provided a " Privilege Log" which asserted that that the pre-2009 personnel records of the Officer Defendants would not be produced on the grounds of " Relevance, " and citing Cal. Evid. Code § 1040, et seq., Cal. Penal Code § § 832.7 and 832.8, and several district court cases. This privilege log thus clarifies that defendants' claim that the discovery request was " overbroad" as to time, was referring to their view that information more than five years old was not relevant.
On November 24, 2014, defendants made supplemental responses to the document requests. They renewed their objections based on over breadth in " subject matter and time, " and on grounds that the officer Defendants' personnel records were confidential and privileged pursuant to Cal. Evid. Code § § 1040, et seq., Cal. Penal Code § § 832.7 & 832.8. However, they produced additional documents pursuant to the parties' stipulated protective order (ECF No. 40). In addition, defendants produced a detailed " Privilege Log" of the specific personnel documents they were withholding. ECF No. 60-1 at 180-83. The sole asserted ground for objection in the privilege log was " Relevance, " although it also cited the California statutes defendants had previously cited as supporting their claim that the documents were " confidential and privileged." All the documents listed as withheld pre-dated 2009.
On December 19, 2014, defendants served their second supplemental responses to the document requests. They renewed the same state law based objections, but produced additional documents pursuant to the stipulated protective order.
Among the documents that defendants have withheld on grounds of remoteness and lack of relevance are documents relating to an incident in the early 2000's in which Officer Bratton " shot a criminal suspect, " and which prompted an investigation by the City of Lodi. ECF No. 60 at 32. Defendants have also withheld documents relating to Officer Bratton's decision to stop using a taser prior to 2010, because he disagreed with the City's policy relating to its use. Id. In addition, the " privilege log" discloses that defendants are withholding documents relating to the Officer Defendants' training, performance appraisals, assignments, commendations, injuries, medical records, evaluations and incident reports, as well as unspecified letters, email, memos, and other documents.
Consistent with their view that personnel records more than five years old are not " relevant, " counsel for the officer defendants instructed their clients not to answer questions if the answer would disclose information from their personnel files that was over five years old. See, ECF No. 60-1, at 155-64 (deposition excerpts) (regarding " negative EPOs, " complaints and IA investigations, " the only questions I'll allow him to answer are within the five years back").
Plaintiffs seek compelled production of these withheld documents, as well as a " verification" that defendants have produced or identified every responsive document called for in the document requests.
(a) Remote documents.