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The Estate of Bernard Victorianne v. County of San Diego

United States District Court, S.D. California

April 17, 2015



BARBARA L. MAJOR, Magistrate Judge.

On February 26, 2015, Julia Yoo, counsel for Plaintiffs, and Ricky R. Sanchez, counsel for Defendants, contacted the Court's chambers regarding a discovery dispute. ECF. No. 49. Counsel informed the Court's chambers that Defendants objected to the production of a number of documents based on the "official information" privilege. Id. at 1.

On February 27, 2015, the Court ordered a special briefing schedule for the discovery dispute and pursuant to the Court's order, the parties filed a Joint Discovery Conference Statement on March 20, 2015. ECF Nos. 49 and 58. Also on March 20, 2015, Defendants delivered the disputed documents to the Court's chambers for in camera review.

The Court has reviewed in camera all of the documents submitted by the parties. For the reasons detailed below, Plaintiffs' request for documents is GRANTED.


On September 11, 2014, Plaintiff initiated the instant matter by filing a complaint alleging (1) deliberate indifference to serious medical needs; (2) wrongful death, (3) right of association, (4) failure to properly train, (5) failure to properly supervise and discipline, (6) failure to properly investigate, and (7) Monell municipal liability civil rights action. ECF No. 1. Defendants filed an answer on October 14, 2014. ECF No. 6.

On February 9, 2015, Plaintiffs filed a First Amended Complaint adding Leslee Hall as a Defendant and alleging (1) deliberate indifference to serious medical needs; (2) wrongful death, (3) right of association, (4) failure to properly train, (5) failure to properly supervise and discipline, (6) failure to properly investigate, (7) Monell municipal liability civil rights action, (8) wrongful death, (9) negligence, and (10) California Civil Code ยง 52.1. ECF No. 39 ("FAC"). Specifically, Plaintiffs allege that decedent Bernard Victorianne was arrested for driving under the influence on September 12, 2012 and that the jail staff - who knew that Mr. Victorianne had ingested drugs prior to being booked - failed to provide Mr. Victorianne with medical care. FAC at 2. Plaintiffs also allege that Mr. Victorianne should have been housed in the medical observation unit where he would have been monitored instead of being placed in solitary confinement. Id . Plaintiffs highlight the fact that a deputy incorrectly reported that he had personally observed Mr. Victorianne's well-being on the evening of September 18, 2012. Id . Plaintiffs state that on September 19, 2012, Mr. Victorianne failed to retrieve his breakfast and when a deputy checked on him, Mr. Victorianne was found lying face down and naked on the floor. Id . Plaintiffs further allege that the deputies only spent 41 seconds in Mr. Victorianne's cell, which violated Defendants' policy requiring confirmation from Mr. Victorianne that he was okay. Id . Plaintiffs claim that no one checked on Mr. Victorianne for approximately three more hours and that he was later found dead, with rigor mortis already setting in. Id . Plaintiffs claim that the evidence shows that at least one deputy lied during the investigation into Mr. Victorianne's death and that no homicide investigators interviewed or took reports from the last two deputies to see Mr. Victorianne alive. Id . Plaintiffs, Mr. Victorianne's parents, allege they learned about the facts of Mr. Victorianne's case from the Citizens' Law Enforcement Review Board's ("CLERB") findings and recommendations nearly two years after his death as "the Sheriff's Department failed to let [Mr. Victorianne's] parents know the circumstances surrounding his death." Id. at 3.


On November 7, 2014, Defendants filed a motion to dismiss Plaintiffs' complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12 (b)(6). ECF No. 15. That same day, Plaintiffs filed a motion to amend the complaint. ECF No. 18. The Court held a telephonic, attorneys-only Early Neutral Evaluation Conference ("ENE") on November 20, 2014. Id. at 21. After the ENE, the Court issued an Order Directing Rule 26 Compliance and Setting Case Management Conference ("CMC"). ECF No. 22. The Court held a telephonic CMC on December 17, 2014 and issued a Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings that same day. ECF Nos. 30 & 31. On January 30, 2015, the Court issued an order granting Plaintiffs' motion to amend the complaint and denying as moot, Defendants' motion to dismiss the complaint. ECF No. 36.

On February 23, 2015, Defendants filed a motion to dismiss and to strike portions of the FAC. ECF No. 42. On February 26, 2015, Plaintiffs filed an Ex Parte Motion to Amend the Scheduling Order. ECF No. 47. Plaintiffs sought to continue the deadline to amend the pleadings or file additional pleadings from February 27, 2015 to seven days after this Court issues an order on the instant discovery dispute. ECF No. 47. The motion was granted the next day. ECF No. 48. On March 5, 2015, Plaintiffs filed an ex parte motion to hold Defendants' motion to dismiss and to strike "in abeyance pending resolution of the parties' discovery dispute and the filing of Plaintiffs' second amended complaint." ECF No. 50 at 2. That motion is still pending.


The federal rules generally allow for broad discovery authorizing parties to obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, and "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed.R.Civ.P. 26(b)(1). To the extent that the discovery sought is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, " the court is directed to limit the scope of the request. Fed.R.Civ.P. 26(b)(2)(i). Limits should also be imposed where the burden or expense outweighs the likely benefits. Fed.R.Civ.P. 26(b)(2)(iii). How and when to so limit discovery, however, remains in the court's discretion.

Federal common law recognizes a "qualified privilege for official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr v. U.S. Dist. Ct., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976)). The party asserting the privilege has the burden of proving the privilege. Kelly v. City of San Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987); see also Hampton v. City of San Diego, 147 F.R.D. 227, 231 (S.D. Cal. 1993) ("Through this opinion, this court is hereby joining the Northern District's and Central District's procedures outlined in Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987) and Miller v. Pancucci, 141 F.R.D. 292 (C.D. Cal. 1992) for invoking the official information privilege"); Stewart v. City of San Diego, 2010 WL 4909630, at *1 (S.D. Cal. 2010) (applying Kelly). To determine whether the privilege applies in a particular case, "courts must weigh the potential benefits of disclosure against the potential disadvantages." Sanchez, 936 F.2d at 1033-1034. The Kelly court provided a non-exhaustive list of factors (taken from Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)) that may be considered when engaging in this weighing process: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case. Kelly, 114 F.R.D. at 663.

In making this determination, courts must conduct "a situation specific analysis of the factors made relevant by the request in issue and the objection to it." Id . In civil rights cases against police departments, the balancing test should be "moderately pre-weighted in favor of disclosure." Soto v. City of ...

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