Opinion
CV 02-1448-HA.
August 3, 2004
ORDER
Before the court are plaintiffs' Motion to Compel (Doc. #181); plaintiffs' Motion to Allow Further Deposition of Mark Kruger (Doc. #202); defendants' Motion to Strike (Doc. #191); and defendants' Motion for Protective Order (Doc. #212).
For the following reasons, plaintiffs' Motion to Compel is granted in part; plaintiffs' Motion to Allow Further Deposition of Mark Kruger is denied; defendants' Motion to Strike is granted; and defendants' Motion for Protective Order is granted.
BACKGROUND
The facts relevant to these motions were discussed in the court's September 8, 2003, Opinion and Order:
On August 22, 2002, President Bush attended a fund-raising event at the Hilton Hotel in downtown Portland, Oregon. Plaintiffs were members of a large group of protesters present to protest the policies of the Bush Administration. The Portland Police Bureau had established a perimeter around the Hilton that ran less than one block in all directions. Defendants claim that the protesters were interfering with the ability of the fund-raiser attendees to enter the Hilton. Accordingly, defendants ordered plaintiffs and other protesters to move back approximately 120 feet. Defendants claim that they used a loudspeaker to order the crowd to move. After plaintiffs allegedly ignored several orders to move, defendants applied pepper spray on the crowd and moved the crowd with force. Later in the day, the police used additional tactics to subdue the crowd, including firing rubber bullets at members of the protest.
According to plaintiffs, the police exercised excessive force and quelled their constitutionally protected activities by assaulting the protesters without justification. Plaintiffs assert that it is defendants' custom, policy, and practice to use excessive force against lawful protesters; plaintiffs also claim that the municipal defendants maintain a policy of inadequately training and supervising police officers. Plaintiffs assert claims for violations of the First, Fourth, and Fourteenth Amendments through 42 U.S.C. § 1983, as well as various common law claims. September 8, 2003, Opinion and Order, at 3.
STANDARDS
"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1). The burden of establishing the need for a protective order falls on the party seeking the protective order. Fed.R.Civ.P. 26(c); San Jose Mercury News, Inc. v. United States Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999). Defendants must justify the need for a protective order based on specific, articulable facts. Valley Broad. Co. v. United States Dist. Court, 798 F.2d 1289, 1294 (9th Cir. 1986). "[A]ccess is particularly appropriate when the subject matter of the litigation is of especial public interest. . . ." Welsh v. City and County of San Francisco, 887 F. Supp. 1293, 1297 (N.D. Cal. 1995) (citing In re "Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 146 (2nd Cir. 1987)).DISCUSSION
A. Plaintiffs' Motion to Compel
In September and October 2003, this court issued three extensive discovery-related orders. The court allowed plaintiffs to serve an amended set of 50 interrogatories, 50 requests for production, and 50 requests for admissions. Notwithstanding two orders clarifying the boundaries of discovery, see September 16, 2003, Order (Doc. #116) and October 8, 2003, Order (Doc. #141), the parties seek further guidance from the court.
1. Interrogatories
In its October 8, 2003, Order (Doc. #141), the court indicated that defendants could respond to plaintiffs' interrogatories collectively, where appropriate. In situations in which individual defendants had particularized responses, the court ordered that the defendants should respond individually. The court has reviewed defendants' responses to plaintiffs' interrogatories and concludes that certain collective responses should have been made individually in order to differentiate between individual defendants.
According to defense counsel, each defendant has already been asked to review the interrogatories and provide responses. See Defendants' Response to Plaintiffs' Motion to Compel Discovery at 4. Therefore, it should not be overly burdensome for defendants to write their responses individually.
Plaintiffs object to defendants' responses to Interrogatories 1, 2, 3, 4, 10, 11, 17, 18, 19, 20, 21, 23, 24, 25, 26, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40. Accordingly, unless otherwise indicated, defendants are ordered to provide plaintiffs with sworn, individualized responses to these interrogatories. If a defendant has no information responsive to a particular interrogatory, he or she can indicate as such. With regard to specific requests, the court rules as follows:
Interrogatory #3. Defendants have provided all responsive duty notebook entries and need not produce additional responses.
Interrogatory #4. Each defendant with responsive information shall describe his or her role in the decision.
Interrogatories #18-21. Defendants need not respond. Officer Kruger's affidavit is sufficiently responsive.
Interrogatories #23-26, and 29. Each defendant shall provide individual responses, excluding privileged communications. Privileged communications shall be appropriately identified in a privilege log.
Interrogatories #35, 36. The questions are vague, and defendants have responded to the interrogatories posed. Therefore, defendants need not provide additional responses, unless any individual defendant is able to offer a more particularized response.
Interrogatories #39, 40. Defendants have answered "no." No further response is required, subject to defendants' duty to supplement.
Identification of Videotapes. Defendants shall identify the specific portion of any videotape that defendants believe is responsive to Interrogatories 2, 9, 10, 13, and 34. Each defendant, if able, shall include any relevant specification in his or her interrogatory response.
2. Admissions
Plaintiffs fail to explain the basis of their objection to defendants' response to plaintiffs' Request for Admissions. It appears to the court that defendants have responded individually, where appropriate. Admissions that do not identify individual defendants are adopted by all defendants. If defendants did not intend for their collective admission to attach to every defendant, they shall amend their admissions within 21 days of this Order.
3. Requests for Production
Plaintiffs seek to compel production of documents but have failed to include a copy of their Requests for Production in their submissions to the court. However, defendants submitted their answers, which include the text of plaintiffs' requests.
Defendants need not produce additional documentation for Requests #30, 33, 34, and 36, as they are not likely to lead to the discovery of admissible evidence. Likewise, defendants need not produce additional documentation for Requests #47 and 49. Defendants have stated that they have responded fully to Request #47. Additionally, the court finds that Request #49 is vague and overly broad.
The parties appear to have resolved their dispute over Request #35. Defendants need not respond to Request #50 as plaintiffs' submissions to the court are nonsensical. Compare Plaintiff's Memorandum in Support of Plaintiffs' Motion to Compel at 9 ("Plaintiffs' Request #50 concerns the deletion of emails") with Defendants' Response to Plaintiffs' September 29, 2003, Request for Production at 31 (" 50. All documents in the possession of the Portland Police Bureau relating to or discussing the Plaintiffs' attorneys in this case") with Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion to Compel at 50 (describing Request #50 as concerning "a list of Bush protest complainants").
Plaintiffs claim that defendants have promised to produce certain documents, but have failed to do so. Defendants claim they have sent other documents, which plaintiffs have never received. The parties are ordered to meet and confer over these house-keeping items that do not require the court's attention. If the parties are unable to resolve these administrative issues, they shall so advise the court within 21 days of this Order.
4. Other Requests
Plaintiffs request an order directing defendants to produce the audio tapes of Officer Myers. Defendants need not produce these tapes because they contain information related to protests occurring after August 22, 2002, and are not relevant to the current litigation. If defendants posses any audio tapes not in plaintiffs' possession that refer to the events of August 22, 2002, they shall advise the court within 21 days of this Order.
Plaintiffs seek to compel production of defendants' trial preparation materials. Otherwise non-privileged information is discoverable "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed.R.Civ.P. 26(b)(3). Defendants are not required to produce the following documents because plaintiffs have failed to show a substantial need under Rule 26: videotape (Doc. #100687); articles (Doc. #104913-104919, 900089-900103; 901472-901481; 900211-900964); photographs (Doc. #100249-100271); and television video (Doc #901482).
Defendants assert that they have produced the underlying materials of the transcript of the Bureau of Emergency Communications CD (Doc. #901590-901732). Therefore, it need not be produced.
Within 21 days of this Order defendants shall submit the unredacted version of the following documents to this court for in camera review: list of complainants (Doc. #101866-101869); e-mail (Doc. #100315); Independent Police Review (IPR) memo (Doc. #101519-101520); and IPR interview cassette tapes that relate to the August 22, 2002, protest.
B. Defendants' Motion to Strike
Defendants' Motion to Strike is granted is part. The first portion of the sentence beginning with "As Officer Kane" and ending with "political demonstrations" of paragraph four of the December 8, 2003, Graf Affidavit is stricken because it is hearsay. The second and fourth sentences of the fifth paragraph of the December 8, 2003, Woodcock Affidavit is also stricken. The second sentence is stricken on best evidence grounds, and the fourth sentence is stricken due to a lack of foundation.
C. Defendants' Motion for Protective Order
Defendants move for an order precluding plaintiffs from: (1) conducting any further discovery regarding Officer Kruger's activities during the time when he was a minor; (2) conducting any further discovery about Officer Kruger's alleged interest in Nazism, Germany, and World War II; and (3) conducting any further discovery about Officer Kruger's personal political views.
The court finds that additional discovery regarding Officer Kruger's activities when he was a minor is not likely to lead to the discovery of admissible evidence. Without commenting on the admissibility of the remaining categories of evidence, the court finds that sufficient discovery on these topics has already occurred. The complaint was filed over twenty months ago, and plaintiffs have had extensive time to discover matters related to the allegations associated with Officer Kruger. Plaintiffs deposed Officer Kruger on September 11, 2003. At that time, plaintiffs were aware of allegations of Officer Kruger's interest in Nazi memorabilia and could have questioned Officer Kruger on the topic. Because plaintiffs have had an ample opportunity to obtain the information sought, they are barred from seeking additional discovery on these matters. Fed.R.Civ.P. 26(b)(2)(ii). Additionally, the court finds that any further discovery would be unreasonably cumulative and duplicative. Fed.R. Civ P. 26(b)(2)(I).
CONCLUSION
For the foregoing reasons, plaintiffs' Motions to Compel (Doc. #181) is granted in part; plaintiffs' Motion to Allow Further Deposition of Mark Kruger (Doc. #202) is denied; defendants' Motion to Strike (Doc. #191) is granted; and defendants' Motion for Protective Order (Doc. #212) is granted.IT IS SO ORDERED.