Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cobb v. Rodriguez

United States District Court, S.D. California

July 18, 2016

JOHN COBB, Plaintiff,
v.
RAMIRO RODRIGUEZ, et al., Defendants.

         (1) DENYING PLAINTIFF’S MOTION FOR SANCTIONS AND/OR TO REOPEN DISCOVERY (ECF NO. 93); (2) GRANTING DEFENDANTS’ EX PARTE APPLICATION TO QUASH SUBPOENA (ECF NO. 114); AND (3) DENYING PLAINTIFF’S EX PARTE APPLICATION TO PRODUCE NONREDACTED FIELD INTERVIEW REPORT (ECF NO. 120)

          Hon. Roger T. Benitez T. United States District Judge.

         On June 20, 2016, Plaintiff John Cobb filed a Motion for Sanctions and/or to Reopen Discovery. (ECF No. 93.) Defendants opposed the Motion. (ECF No. 98.) Related to Plaintiff’s Motion and addressed in this Order are Defendants’ Ex Parte Application to Quash Subpoena and for Sanctions and Plaintiff’s Ex Parte Application to Produce Nonredacted Field Interview Report. (ECF Nos. 114, 120.) For the reasons stated below, Plaintiff’s Motion for Sanctions and/or to Reopen Discovery is DENIED, Defendants’ Ex Parte Application to Quash Subpoena is GRANTED, and Plaintiff’s Ex Parte Application to Produce Nonredacted Field Interview Report is DENIED.

         BACKGROUND

         Plaintiff, proceeding pro se in a civil rights action related to his arrest for being under the influence of a controlled substance, seeks sanctions and/or the reopening of discovery based on Defendants’ alleged purposeful failure to disclose witnesses and produce documents. Plaintiff argues that Defendants have concealed the identities of a white male witness and a black male witness seated at a picnic table who observed Plaintiff’s detention. (Mot. at 5, 10, 14.) Defendants have maintained throughout discovery that the white male was undercover police officer Jason Zdunich and the black male was an individual that was detained and released at the time of Plaintiff’s detention. (Opp’n at 2; see also Pl.’s Ex. 14, Def. Calderson’s Interrog. Resp. at 19 (“We detained an undercover officer, Jason Zdunich, and an African American man after the African American male propositioned Officer Zdunich for sexual acts.”)) During discovery, Defendants tried to determine the identity of the black male in response to requests from Plaintiff, but were not able to determine his identity. (Pl.’s Ex. 21; Decl. of Stacy J. Plotkin-Wolff ¶ 6.)

         Plaintiff now argues that the white male subject of Field Interview Report 2064694, whose name was redacted to protect his privacy, was the white male seated at the picnic table and not Officer Zdunich. (Mot. at 14.) The Field Interview Report identifies a companion of the white male subject named Derrick Cooper. (Pl.’s Ex. 8.) Plaintiff believes that Mr. Cooper is the black male witness. (Mot. at 14.) Alternatively, Plaintiff asserts that Mr. Cooper is the white male witness. (Mot. at 5.) Defendants tried to identify Mr. Cooper’s race by checking the DMV database and the database of persons who have been incarcerated, but Mr. Cooper did not appear in either database. (Decl. of Plotkin-Wolff ¶ 7.)

         On July 7, 2016, Plaintiff subpoenaed Defendants, commanding production of a nonredacted version of Field Interview Report 2064694.[1] (ECF No. 120 at 10.) Plaintiff subsequently filed an ex parte application with this Court, requesting the Court order production of the nonredacted report. (ECF No. 120.) In response, Defendants filed an ex parte application to quash the subpoena and request sanctions against Plaintiff. (ECF No. 114.)

         In his Motion for Sanctions and/or to Reopen Discovery, Plaintiff also asserts that Defendants failed to disclose in a timely manner Defendant Ramiro Rodriguez’s Field Interview Report 2124723. (Mot. at 13.) He contends that this Field Interview Report should have been disclosed in February 2016 as part of Defendants’ Response to Plaintiff’s Request for Production, but was not produced until June 2016 when he requested it from the City Attorney upon realizing it had not been included in Defendants’ production. (Decl. of John Cobb ¶ 60-61.) Plaintiff asserts that the untimely disclosure has prejudiced his case because he would have deposed Defendant Rodriguez had Plaintiff known about Field Interview Report 2124723. (Id. ¶ 63.)

         Plaintiff asks the Court to sanction Defendants by (1) entering default judgment, (2) dismissing their affirmative defenses, (3) instructing the jury that Defendants have concealed evidence and witnesses and that this infers that Plaintiff did not exhibit symptoms of being under the influence of a controlled substance, (4) instructing the jury that Plaintiff did not exhibit symptoms of being under the influence of a controlled substance, or (5) ordering the identification and production at trial of the white and black male witnesses. (ECF No. 93-1 at 17; ECF No. 95-4 at 2.)

         Defendants counter that Plaintiff’s Motion is completely unsubstantiated, and they seek attorney’s fees for the time spent responding to the Motion. (Opp’n at 7.)

         DISCUSSION

         I. Plaintiff’s Motion for Sanctions and/or to Reopen Discovery

         Under Civil Local Rule 26.1(a), the Court will not entertain “motion[s] pursuant to Rules 26 through 37, Fed. R. Civ. P., unless counsel will have previously met and conferred . . . in person.” The Scheduling Order repeats the requirement to meet and confer and mandates that “[a] failure to comply in this regard will result in a waiver of a party’s discovery issue.” (ECF No. 55 ¶ 5.) These rules alone are reason enough to deny Plaintiff’s Motion. The parties did not meet and confer in person. (Decl. of Plotkin-Wolff ¶ 5.)

         However, the Court will also address the merits of the Motion. In general, a pretrial scheduling order can only be modified upon a showing of “good cause.” Fed. R. Civ. P 16(b). The Ninth Circuit has held that in determining whether there is good cause to reopen discovery, courts should consider the following factors: “(1) whether trial is imminent, (2) whether the request is opposed, (3) whether the non-moving party would be prejudiced, (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and (6) the likelihood that the discovery will lead to relevant evidence.” U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995), vacated on other grounds, 520 U.S. 939 (1997).

         The Court’s authority to sanction a party for concealing evidence arises from its “inherent power to impose sanctions in response to litigation misconduct and from Rule 37, ” Lewis v. Ryan, 261 F.R.D. 513, 518 (S.D. Cal. 2009), under which sanctions are available against a party who “fails to provide information or identify a witness as required by Rule 26(a) or (e), ” Fed.R.Civ.P. 37(c)(1). Dismissal and default are only appropriate when circumstances evidence willful disobedience of court orders or bad faith conduct. Compass Bank v. Morris Cerullo World Evangelism, 104 F.Supp.3d 1040, 1053 (S.D. Cal. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.