Opinion
No. 1:05cv689 REC DLB.
May 16, 2006
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL (Document 21)
Plaintiff Hector Escalante ("Plaintiff") filed the instant motion to compel production of documents on May 1, 2006. The motion was heard on May 12, 2006, before the Honorable Dennis L. Beck, United States Magistrate Judge. Ellen Ellison appeared on behalf of Plaintiffs. Michael Kellar appeared on behalf of Defendants City of Delano ("City") and the individual Delano Police Officers.
BACKGROUND
Plaintiff filed this complaint for money damages brought under 42 U.S.C. § 1983 for civil rights violations against the City of Delano and several of its employees, individually and officially, for malicious prosecution, false arrest, false imprisonment, false report writing, and conspiracy to do all of the above.
Plaintiff filed the instant motion to compel on May 1, 2006, and seeks to compel production of documents served on January 11, 2006. The parties filed their Joint Statement on May 1, 2006.
FACTUAL ALLEGATIONS
Plaintiff alleges that prior to June 9, 2003, several acts of unlawful harassment occurred by the named officers which led to a June 9, 2003 false arrest of plaintiff and a subsequent arrest on November 12, 2003 while charges were pending on the first arrest. Plaintiff alleges that both arrests and the harassment by law enforcement preceding the arrests were caused or performed by defendant Campos with the conspiratorial assistance of defendants Arviso, Johnson, Costello, Castaneda, Nicholson, Guzman and Ortiz. Plaintiff alleges the individual officers conspired to and wrote false police reports to justify the false arrests, false imprisonment and malicious prosecution of plaintiff. Plaintiff alleges that all allegations made against him were false and resulted in the dismissal of all charges. Plaintiff alleges the Delano Police Department maintained, enforced, tolerated, permitted, acquiesced and applied policies of allowing unreasonable searches and seizures, inadequate investigations and covering up of misconduct.
Defendants contend that at all times relevant herein, plaintiff was suspected of selling illegal drugs and was the subject of an extensive investigation which led to his arrest. The defendants contend that at all times herein, their conduct was privileged and lawful, and that the arrests of the plaintiff were pursuant to a valid warrant and/or based upon probable cause. The defendants further contend that all of the officers involved in plaintiff's investigation were properly supervised, and that the Delano Police Department maintains policies regarding such investigations. The defendants further contend that the Delano Police Department does not have a custom of condoning false arrests, false imprisonment, or false report writing. The defendants contend the plaintiff did not suffer emotional distress other than the type that would be typically suffered by a person dealing in illegal drugs who is arrested by a law enforcement agency.
On January 11, 2006, plaintiff served Request for Production, Set No. 1. When defendants failed to respond, plaintiff contacted counsel on February 17, 2006 and again on March 23, 2006. Defendants served untimely responses on April 7, 2006 with the production of some documents but objected to others. Plaintiff argues all objections have been waived and requests revised responses, without objection.
Counsel for defendant, a sole practitioner, states that when the discovery was served, he was in trial in the Fresno County Supreme Court ( Garcia v. Paramount Citrus Assn, 03 CEGCG 02781.) He states that trial began on January 4, 2006 and was not completed until the month of February 2006. As a result defendants were unable to provide timely responses. Counsel states that is was not his intention to waive objections to plaintiff's requests.
LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. . . . The information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
In federal question cases, privileges asserted in response to discovery requests are determined under federal law, not the law of the forum state. Fed.R.Evid. 501; United States v. Zolin, 491 U.S. 554, 562 (1989); Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 197 (9th Cir. 1975). Federal common law recognizes a qualified privilege for official information, also known as the governmental privilege, or state secret privilege. Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 198 (9th Cir. 1975). The application of the official information privilege is "contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken." Id.
Federal Courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests. See Breed v. United States Dist. Ct. for Northern District, 542 F.2d 1114, 1116 (9th Cir. 1976) (balancing the invasion of minor's privacy rights against the court's need for ward files); Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992), cert. den. 507 U.S. 910, 113 S.Ct. 1255, 122 L.Ed.2d 654 (1993) (denying discovery of names of participants in a medical study due to privacy interests of the individual participants); Cook v. Yellow Freight Sys., Inc., 132 F.R.D. 548, 550-51 (E.D.Cal. 1990) (balancing targeted individual's right of privacy against public's need for discovery in employment discrimination case).
DISCUSSION
A. PLAINTIFF'S REQUEST FOR PRODUCTION NOS. 3-5.
At the beginning of the hearing, the Court inquired into Defendants' responses. Pursuant to this discussion, it appears that Defendants have produced the documents in their possession in response to Request for Production Numbers 3, 4 and 5 despite their "boilerplate" objections.
Failing to respond to a Rule 34 request within the time permitted waives all objections thereto, including claims of privilege and work product. Richmark Corp. V. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Defendants failed to provide a timely response to plaintiff's discovery request and therefore have waived all objections thereto.
Moreover, there is an inherent vice in the type of "boilerplate" objections used by Defendants. Such objections leave the propounding party and the court to speculate whether any documents have been withheld in reliance on the objections, as occurred here. Such objections are also of little use to the responding party in light of the provisions of Rule 34 which require the responding party to indicate whether or not production or inspection of the requested documents will be permitted.
Accordingly, Defendants are ordered to provide further verified responses to Request Numbers 2, 4 and 5, without objections and which state that all documents in their possession, custody or control have been produced. B. PLAINTIFF'S REQUEST FOR PRODUCTION NOS. 1, 6-9 AND 14.
As stated above, defendants failed to provide timely responses to the discovery and therefore must respond, without objection, to the remaining requests at issue in this motion. Notwithstanding defendants' waiver of objections, the requests seek documents to which plaintiff is entitled under the discovery rules as relevant to his claims.
Request for Production Number 1 seeks documents reflecting investigations of complaints against the named defendants for unlawful police harassment, abuse of authority, improper supervisory conduct, related employment guidelines or other civil rights violations from five years prior to the date of the incident thought the date of defendants compliance with this production request. Such investigations are relevant to Plaintiffs' claims and Defendants shall produce all documents in their possession, custody or control responsive tot his request.
Request for Production Number 6 seeks documents regarding Tort claims and lawsuits filed with the City in which any of the individually named defendants (including Jack Griggs, Chief of Police) are identified as the responsible or named employee. At the hearing, counsel for plaintiff confirmed that this request is limited as stated above and was not meant as a request for all tort claims and lawsuits filed naming the City of Delano. Defendants shall produce the requested information, as limited, without objection.
Request for Production Number 7 seeks performance evaluations for all defendants from five (5) years before the incident through the date of the response. Defendants shall produce the requested documents. The Court is mindful of the privacy concerns associated with documents of this nature and therefore strongly encourages the parties to enter into a stipulated protective order to which defendants' production would be subject.
Request for Production Number 8 seeks training records, including background investigations into the individual defendants suitability to serve as law enforcement officers and all in service training records for all individually named defendants with the exception of Jack Griggs. These documents are also relevant to plaintiff's claims and shall be produced by defendants, without objection, subject to any stipulated protective order the parties may enter into.
Finally, Request for Production Number 9, seeking statistics regarding personnel complaints against the Delano Police Department or its officers and Number 14, seeking personnel jackets for all individually named defendants with the exception of Jack Griggs. These documents should, of course, be produced subject to a stipulated protective order. Furthermore, Defendants need only produce that portion of the personnel jackets which includes information in the categories relevant to the claims made in this action, harassment, falsification of police reports, false arrest, and malicious prosecution.
B. PLAINTIFF'S REQUEST FOR SANCTIONS
Plaintiff requests sanctions pursuant to Rule 26(g) and 37 in the amount of $400.00 per hours for the number of hours spent in connection with this motion to compel.
The party who prevails on a motion to compel is entitled to his or her expenses, including reasonable attorney fees, unless the losing party was substantially justified in making or opposing the motion (or other circumstances make such an award unjust). Fed.R.Civ.P. 37(a)(4). The burden is on the losing party affirmatively to demonstrate that its position was substantially justified. Id.
While the Court recognizes and appreciates the challenges facing sole practitioners in dealing with a large caseload, counsel's complete failure to communicate with counsel prior to the deadline and inattention to this matter is warranting of sanctions. Counsel has failed to demonstrate substantial justification for his position. The Federal Rules provide no exception for attorneys' scheduling issues. Furthermore, a timely request for an extension made to Plaintiff's attorney or to the court, if necessary, would have preserved Defendants' right to object. Counsel's inattention to the requests continued long after the date on which his trial ended. Plaintiff's request for sanctions is therefore granted.
C. CONCLUSION
Plaintiff's motion to compel further responses to the request served on January 11, 2006 is GRANTED. Defendants shall provide further responses and production of documents as ordered herein, within 20 days of service of this Order. Plaintiff's motion for sanctions is GRANTED. Within 10 days of this Order, Plaintiff shall submit a declaration in support of the request for sanctions detailing the number of hours spent on this motion. Defendants may respond to the declaration within 10 days thereafter.
IT IS SO ORDERED.