United States District Court, N.D. California
ORDER GRANTING DEPOSITION TESTIMONY OF MATERIAL THIRD
PARTY WITNESS RE: DKT. NO. 79
JACQUELINE SCOTT CORLEY United States Magistrate Judge.
case arises out of the officer involved shooting of Amilcar
Perez-Lopez (“Lopez”) by San Francisco police
officers Craig Tiffe and Eric Reboli (collectively,
“Defendants”). The parties jointly seek an order
compelling the deposition of third party witness Abraham
Perez (“Perez”) who is currently in custody on
unrelated criminal charges. (Dkt. No. 79 at 1.) Perez's
counsel contacted defense counsel and on Mr. Perez's
behalf asserted Fifth Amendment objections to the deposition
testimony sought by the parties. Perez's counsel,
however, has not contacted the Court regarding such
objections. At this stage, there is no evidence that
Perez's deposition could be used in criminal prosecution
or could lead to other evidence that could be so used;
therefore the Court GRANTS the parties' request to compel
February 26, 2015, Defendants responded to a call regarding a
male individual allegedly chasing another man with a knife.
(Id.) The individual with the alleged knife was
Amilcar Perez-Lopez. (Id.) The person he was
allegedly chasing was third party witness Perez. Defendants
eventually shot Lopez. (Id.) Perez witnessed the
shooting and made statements regarding the incident.
(Id. at 2.) Both parties seek the deposition of
recently located Perez in custody at the San Francisco County
Jail under a different name. (Id.) He is in custody
on unrelated criminal charges. (Id.) On April 17,
2017, defendants hand served a deposition subpoena on Perez
for a deposition at the County Jail to take place on April
27, 2017. (Id.) On April 25, 2017, Rebecca Young, a
public defender representing Perez on unrelated criminal
charges, contacted defense counsel. Ms. Young wrote that she
will advise Perez to assert his Fifth Amendment privilege
against self-incrimination at the deposition. (Dkt. No.
79-1.) Also on April 25, 2017, Mr. Lewis Romero, a private
attorney, contacted defense counsel stating he was
representing Perez in regards to the deposition. (Dkt. No. 79
next day, Mr. Romero advised defense counsel that he would
instruct his client to assert his Fifth Amendment right to
silence in response to all deposition questions. (Dkt. No.
79-2.) Mr. Romero also requested that the deposition be
postponed in order to meet and confer regarding the
parameters. (Id.) Defense counsel agreed to continue
Perez's deposition in order to meet and confer with Mr.
Romero about the scope of the deposition and legal basis for
asserting the Fifth Amendment privilege. (Id.)
Defense counsel contacted Mr. Romero again on May 2, 2017,
however Mr. Romero has not responded. (Dkt. Nos. 79 at 2,
79-3.) The parties then filed a joint discovery letter to
this Court seeking an order to compel Perez's deposition.
(Dkt. No. 79.) Perez's attorneys were copied on the
discovery letter, but have not contacted the Court. (Dkt. No.
79 at 5.)
discovery generally, deposition questions may relate to
“any non-privileged matter that is relevant to any
party's claim or defense.” Fed.R.Civ.P. 26(b)(1).
In the civil context, the invocation of the Fifth Amendment
privilege is limited to those circumstances in which the
person invoking the privilege reasonably believes that his
disclosures could be used in a criminal prosecution, or could
lead to other evidence that could be used in that manner.
See United States v. Bodwell, 66 F.3d 1000, 1001
(9th Cir. 1995). The privilege extends to those witnesses who
have “reasonable cause to apprehend danger from a
direct answer” but it does not protect those who fear
“a danger of imaginary and insubstantial
character.” Ohio v. Reiner, 532 U.S. 17, 21
is no evidence before the Court that counsel's questions
will touch upon information that could be used in a criminal
prosecution of Perez. Should any questions touch on
information related to a separate criminal proceeding or
potential criminal proceeding, Perez's attorney may
object accordingly. If Perez's attorney instructs his
client to not answer, Defendants' remedy is to make a
motion to compel answers. See Fed. R. Civ. P.
37(a)(3) & (4); see also Estrada v. Rowland (9th
Cir. 1995) 69 F.3d 405, 406. Accordingly, the Court grants
the parties' motion to compel Perez's deposition.
have also filed an administrative motion to file under seal
transcripts of Perez's recorded audio statements to the
police. (Dkt. No. 80.) The Ninth Circuit uses the “good
cause” test for documents that a party obtained through
discovery and attached to a non-dispositive motion.
Kamakana v. City and County of Honolulu, 447 F.3d
1172, 1179 (2006). Under Civil Local Rule 79-5(b) a party
designating material as confidential “must file a
declaration as required by subsection 79-5(d)(1)(A)
establishing that all of the designated material is
sealable.” Id. § 79-5(e)(1). Defendants
argue that because the audio files were transcribed by
counsel the transcripts are attorney work product. “The
work product doctrine, codified in Federal Rule of Civil
Procedure 26(b)(3), protects ‘from discovery documents
and tangible things prepared by a party or his representative
in anticipation of litigation.' ” In re Grand
Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004). Here,
Defendants' submitted a declaration stating the
transcripts were prepared by defense counsel. (Dkt. No. 80-1
at ¶3). Therefore, the Court concludes the transcripts
are attorney work product and grants Defendants' motion
to file under seal.
reasons stated above, the Court GRANTS the parties'
request to compel the deposition of Perez and Defendants'
motion to file under seal the transcripts of Perez's
statements to the police.
Order disposes ...