United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR A SUBPOENA
WITHOUT PREJUDICE (DOC. 38)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Arellano asserts Bakersfield Police Officers Chad Haskins and
Frederick Martinez used excessive force after he surrendered
to their arrest. (Doc. 9) Plaintiff seeks to have the Court
issue a subpoena to KGET/News Network “to provide video
footage of the incident for evidence.” (Doc. 38 at 2)
For the reasons set forth below, Plaintiff's request is
DENIED without prejudice.
County Superior Court records in No. BF162809A indicate
Plaintiff was arrested on January 14, 2016, and charged with
violations of California Vehicle Code § 2800.4 (evading
a peace officer by driving in the opposite of traffic),
California Vehicle Code § 2800.4 (driving recklessly
while evading a peace officer), California Penal Code §
30305(a)(1) (possession of ammunition by a person prohibited
from owning or possessing a firearm), and California Penal
Code § 69 (obstruction or resistance of an officer
through the use of threat or violence). Plaintiff pleaded no
contest to each of these charges and was sentenced to more
than fourteen years in prison.
alleges that on the day of his arrest, he led officers on
“a considerably slow-speed chase for over two
hours.” (Doc. 9 at 2) Plaintiff asserts his vehicle
“did in fact come to a full stop, with three tires
blown out by spike strips, ” after which
“Plaintiff surrendered, with his hands in the air and
eventually laying prone on the ground.” (Id.
at 3) Plaintiff contends that after he surrendered,
Bakersfield Police Officers Chad Haskins and Frederick
Martinez had “a few minutes of deliberations”
after which they shot “a rubber bullet projectile into
the body of Plaintiff.” (Id.) In addition,
Plaintiff contends Officers Haskins and Martinez
“release[d] the K-9 (dog) unit to attack Plaintiff
while he was still in the state of total surrender.”
(Id.) According to Plaintiff, “The Defendants
failed to cease and desist the use of the attack dog for
several minutes, and while they watched, the Defendants did
observe their K-9 Unit rip, tear and cause great and serious
injuries upon the body of Plaintiff.” (Id.)
upon the foregoing facts, Plaintiff contends the officers are
liable for a violation of his Fourth Amendment right to be
free from the use of excessive force. (Doc. 9 at
3-4) Plaintiff now asks the Court issue a subpoena to KGET
News for video footage related to the underlying incident.
(Doc. 37 at 4-6)
Discovery and Subpoenas to Third Parties
scope and limitations of discovery are set forth by the
Federal Rules of Civil Procedure and Evidence. Fed.R.Civ.P.
Unless otherwise limited by court order, parties may obtain
discovery regarding any nonprivileged manner that is relevant
to any party's claim or defense - including the
existence, description, nature, custody, condition, and
location of any documents or other tangible things…For
good cause, the court may order discovery of any matter
relevant to the subject matter involved in the accident.
Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.
evidence is defined as “evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed.R.Evid.
401. Relevancy to a subject matter is interpreted
“broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Rule 45 of the Federal Rules of Civil Procedure, a subpoena
may be issued to a third party to “produce designated
documents, electronically stored information, or tangible
things in that person's possession, custody, or
control.” Fed.R.Civ.P. 45(a)(1)(A)(iii). A non-party,
as well as a party, may be compelled under Rule 45 to produce
documents and tangible things or to permit an inspection.
Fed.R.Civ.P. 34(c). The party seeking production of documents
bears the burden of proving that the opposing party has such
control. States v. Int'l Union of Petroleum &
Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir.
Discussion and Analysis
seeks the Court's assistance with issuing a subpoena to
KGET News for video footage. However, Plaintiff fails to
clearly identify what footage he believes the news entity
possesses. For example, if KGET News has footage only of the
slow-speed chase through the town, such footage is not
relevant to Plaintiff's claim for excessive force
following his surrender.
Plaintiff fails to state whether the footage he seeks was
released or broadcast by KGET News. Journalists and news
entities are entitled to a media privilege for unpublished
media. See Los Angeles Memorial Coliseum Com. v.
Nat'l Football Leauge, 89 F.R.D. 489, 494-495 (C.D.
Cal. 1981). To overcome this privilege, the party seeking
disclosure of unpublished media must demonstrate: (1) that
the information sought is relevant; (2) that the information
sought goes to the heart of the movant's case; (3) that
there is a compelling reason for the disclosure; and (4) that
other means of obtaining the information have been exhausted.
See Id. at 494-95; see also Shoen v. Shoen,48 F.3d 412 (9th Cir. 1995). However, Plaintiff fails to
provide any information related to the ...