United States District Court, N.D. California
ORDER RE DISCOVERY DISPUTES
ILLSTON UNITED STATES DISTRICT JUDGE.
Vincent Keith Bell brings this civil rights action against
several defendants under 42 U.S.C. § 1983. The Court
previously granted summary judgment for defendants on two of
Bell's claims. Dkt. No. 48. His excessive force claim
remains. Id. At the March 2, 2017 case management
conference, the Court ordered the parties' counsel to
meet and confer on several topics. Civil Minutes (Dkt. No.
77). The parties filed a joint statement indicating that some
disagreements could not be resolved at the meet and confer
session, and subsequently filed the instant statement of
discovery disputes pursuant to the Court's standing
order. Joint Status Statement (Dkt. No. 82); Joint Statement
Regarding Discovery Disputes (Dkt. No. 88). The Court
addresses each dispute separately.
Plaintiff's Requests for Production
Prior Incidents Involving Defendants (RFPs 17 and
requests documents related to any accusations of use of force
by defendants against other detainees. Dkt. No. 88, Ex. 1,
RFPs 17, 18. Among other assertions, defendants
objected that RFPs 17 and 18 call for confidential and
privileged information under California Penal Code §
832.7, “the official information privilege, the
investigation privilege, and the deliberative process
privilege.” Id. However, they now state that
they are reviewing and producing excessive force complaints
against them for the past five years. Dkt. No. 88 at 2-3.
Defendants seek a limiting instruction to produce only those
records or, alternatively, request that the Court review
in camera relevant materials older than five years
to determine whether they must be produced. Id. at
3. Bell argues that the alleged excessive force incident
underlying his claim occurred approximately four years ago
and that earlier uses of force by defendants are just as
relevant as incidents occurring afterward. Id. at 1.
accordance with their agreement, defendants are ordered to
produce the excessive force complaints against them for the
past five years (April, 2012 - April, 2017) forthwith. In
addition, the Court ORDERS that all excessive force
complaints against defendants predating April, 2012 be
provided to the Court for in camera review no later
than April 21, 2017.
Identification of Witnesses (RFP 15)
requests “[a]ny visual or audio recordings of any
interview conducted by internal affairs with inmates
regarding the incident.” Dkt. No. 88, Ex. 2 at 10.
Defendants state that they “will not produce the names
of any inmate witnesses or any recording of their interviews,
for fear of retaliation by [Bell] or other prisoners, unless
ordered to by the Court.” Dkt. No. 88 at 2. Bell argues
that he is unable to effectively litigate his case without
knowing the identity of the inmates who witnessed the
underlying incident, especially because “all jail staff
who have testified so far have claimed to have no
recollection at all of the incident.” Id. at
1. He also contends that this objection is speculative
because defendants have not identified any specific threat.
Id. at 2. Bell offered to designate the information
as “attorneys'-eyes-only.” Id.
defendants may have legitimate security concerns, they have
not proffered any reason why an “attorneys' eyes
only” designation would not be sufficient to quell
these concerns.Therefore, defendants are ORDERED to produce
materials responsive to RFP 15 and to designate such
materials as “attorneys' eyes only.”
Bell's counsel shall not share with Bell the information
contained in the responsive materials, including the identity
of the inmate witnesses, without leave of Court.
Camera Locations & Recording Retention Policy (RFPs 12
asserts that defendants produced videos of the incident from
three cameras, but “in a recent inspection”
Bell's counsel found at least three more cameras in
places where the incident occurred. Dkt. No. 88 at 2. Bell
now seeks production related to the location of recording
devices in place at the time of the incident and
defendants' retention policy for recordings. See
RFPs 12, 16. Defendants claim that they are still
trying to locate documents responsive to RFP 12 and that
producing such documents could jeopardize jail security. Dkt.
No. 88 at 2. They also claim that there are no documents
responsive to RFP 16. Id. Bell responds that
defendants' safety concerns are addressed by the
protective order. He also asserts that, based on
defendants' counsel's prior statements, it is
unlikely that there are no materials responsive to RFP 16.
Bell argues that defendants should perform a search for
materials related to RFP 16 and detail what they did.
are ORDERED to produce all materials responsive to RFPs 12
and 16. To the extent that there is a security risk from the
disclosure of the location of recording devices four years
ago, it is addressed by the parties' protective order. If
there are no materials responsive to one or the other of
these RFPs, defendants provide a sworn declaration from a
person with knowledge of the matter, so stating.
seeks a 30 minute continuation of the deposition of Mary Jane
Cabuag, a nurse who treated Bell. At the original deposition,
Bell's counsel showed Cabuag a photograph that counsel
represented was of “Bell being transported into the
safety cell” before Cabuag examined him. Dkt. No. 88,
Ex. 3 at 61. Bell's counsel asked, “In your
opinion, as a nurse, could the manner in which Mr. Bell is
being carried in this picture injure his shoulder?”
Id. Defendants' counsel objected that the
question called for speculation and expert testimony, and
instructed Cabuag not to answer. Id. at 62.