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Blight v. City of Manteca

United States District Court, E.D. California

June 21, 2017

JOANNE BLIGHT, Plaintiff,
v.
CITY OF MANTECA, et al., Defendants.

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Relevant Procedural And Factual Background

         This 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.

         On 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).

         On 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:

         For the 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.

Id.

         Defendants 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.

         The 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.

         The 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 ...


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