United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
matter came on for hearing before the undersigned on
plaintiff's Motion to Compel Compliance with This
Court's Orders, ECF Nos. 81 & 86. Sanjay S. Schmidt
appeared telephonically on behalf of plaintiff, and Kevin P.
Allen appeared telephonically on behalf of defendant. With
the consent of the parties, the court also heard argument on
defendants' pending Motion for Protective Order, ECF No.
84, which involves the same dispute but had been noticed for
hearing on a later date. Upon consideration of all arguments
and papers, the court GRANTS in PART plaintiff's motion
to compel, reserving the issue of sanctions for resolution by
separate order following supplemental briefing.
Defendants' motion for a protective order is DENIED.
Relevant Procedural And Factual Background
lawsuit was filed on December 2, 2015. ECF No. 1. The case
involves the allegedly illegal search of a private residence,
pursuant to a search warrant authorizing search of another
residence with a different house number on the same property.
The search warrant was issued after a state court judge
reviewed an affidavit containing information provided by a
confidential informant (“CI”). Defendants contend
that the affidavit supported probable cause to search both
residences. Plaintiff alleges that the judge was misled.
September 20, 2016, plaintiff moved to compel discovery of
the affidavit. ECF No. 13. Defendant argued in opposition
that disclosure was precluded by the “informer's
privilege.” After hearing and upon a balancing of the
relevant factors, the undersigned overruled that objection
and granted the motion to compel in relevant part, finding
that plaintiff's need for the information outweighed the
law enforcement and CI's interests in confidentiality.
ECF No. 26. The affidavit and related discovery were ordered
produced pursuant to an Attorney's Eyes Only Protective
Order. Id. That order prohibits plaintiff's
counsel from sharing the affidavit, including any information
that might identify the CI, with their client or specified
other individuals. ECF No. 36 (stipulated
“Attorney's Eyes Only Protective Order”) at
3, 4; ECF No. 37 (order adopting same).
January 18, 2017, plaintiff moved to compel discovery
necessary for a deposition of the CI. Plaintiffs sought an
order requiring defendants to provide the full name,
telephone number, and address of the CI or, in the
alternative, to produce the CI for a deposition at a mutually
agreed upon time and place. Id. Following
consideration of the parties' briefing and a full hearing
on the motion, the undersigned issued an order granting the
motion to compel. ECF No. 55. This order addressed the scope
of the informer's privilege at length. Id. at
2-5. The order explained what was required of the defendants
in no uncertain terms, stating as follows:
reasons set forth above, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion To Compel (ECF No. 41), is GRANTED;
2. Defendants shall either (1) produce the CI for deposition
by plaintiff's counsel, or (2) produce to plaintiff's
counsel the CI's identifying information sufficient for
CI to be subpoenaed to appear for a deposition; and
3. Under either option, all parties shall act under the
constraints of the Attorneys' Eyes' Only protective
order, and the deposition shall be conducted pursuant to that
order. See ECF No. 36.
requested reconsideration of the Magistrate Judge's order
by the District Judge. ECF No. 71. The District Judge denied
defendants' request for reconsideration. ECF No. 77 at 5.
parties, representing to the court that they had met and
conferred in good faith and were seeking to arrange a plan to
depose the CI before the expiration of the discovery
deadline, sought and the court approved a brief extension of
the discovery deadline to June 23, 2017 and the dispositive
motion deadline to June 30, 2017. ECF No. 83 at 3-4. This
stipulation contained language providing that the discovery
deadline and dispositive motion deadline would be tolled,
solely concerning the deposition of the CI, if there was a
pending discovery motion as of June 23, 2017. Id.
The trial date, which was not impacted by the stipulation, is
set for October 17, 2017. ECF No. 59.
deposition of the CI has not yet taken place. On May 25,
2017, plaintiff filed this motion to compel defendants'
compliance with the court's orders authorizing the
deposition and requiring defendants to either (1) produce the
witness for a deposition, or (2) provide the information
necessary to issue a subpoena. ECF No. 81; ECF No. 86 at 12.
Defendants assert that the CI has agreed to voluntarily
appear but only if he/she can appear behind a privacy screen.
Id. at 19. Defendants' motion for a protective
order seeks a court order for such a screen. ECF No. 84.
Plaintiff does not agree to the privacy screen. ECF No. 86 at
17. Further, plaintiff argues ...