Opinion
2:19-cv-1191-JAM-CKD
09-26-2022
LOUIS MCCOY, et al., Plaintiffs, v. CITY OF VALLEJO, et al., Defendants.
ORDER (ECF NOS. 174, 181)
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Presently before the court are plaintiffs' motion to compel further deposition testimony by members of the Vallejo Police Department (“VPD”) and defendants' request to seal portions of the briefing of this motion. (ECF Nos. 174, 181.) The parties filed on the docket a partly redacted Joint Statement regarding the discovery disagreement, along with certain supporting materials (ECF No. 180); and defendants emailed to the court (pursuant to Local Rule 141(b)) a request to seal and proposed redacted versions of numerous documents and declarations related to the discovery dispute-also filing on the docket a notice of this request to seal, to which they attached two declarations with additional exhibits (ECF No. 181). After reviewing the Joint Statement and related materials, the court determines this matter is suitable for resolution without oral argument, see E.D. Cal. L. R. 230(g), and therefore vacates the September 28, 2022, hearing on plaintiffs' motion. For the following reasons, the court GRANTS IN PART plaintiffs' motion to compel and GRANTS defendants' request to seal.
BACKGROUND
This excessive force case arises from the death of Willie McCoy, a 20-year-old man who in February 2019 was fatally shot by a group of VPD officers as he slept in his car. Plaintiffs are suing six VPD officers involved in the shooting, two VPD supervisors, former VPD Chief Andrew Bidou, and the City of Vallejo for-as relevant to this motion-excessive force, municipal liability, and supervisory liability under 42 U.S.C. § 1983. (See ECF No. 169, Third Amended Complaint (“TAC”).)
The operative complaint includes a Monell claim for municipal liability against former Chief Bidou (who retired in June 2019) and the City, alleging a pattern and practice of officers using excessive force without facing disciplinary consequences. (TAC at 25-28.) As one of the bases for the Monell claim, the complaint asserts that at the time of McCoy's death, there existed within the VPD a “vigilante police gang” which rewarded officers for shooting and killing citizens, commemorating each killing by bending one point on the officer's police badge for each fatality-and treating them to “beer and a barbecue” for their killing. (TAC ¶¶ 42-44.) Part of gang members' reward was also to be promoted within the VPD and protected from internal affairs investigations and discipline. (TAC ¶ 44.) Plaintiffs allege that the defendant officers treated the McCoy shooting as an opportunity to gain additional ‘badge-bends' and that Chief Bidou conspired with this gang to promote, maintain, and conceal the group's existence before and after the shooting. (TAC ¶¶ 52-58.)
The complaint attributes these allegations to the contents of a whistleblower employment lawsuit filed in state court in 2020 by former VPD Captain John Whitney. (TAC ¶ 42; see John Whitney v. The City of Vallejo, et al., No. FCS055842 (Cal. Super. Ct. Solano Cty., complaint filed Dec. 22, 2020).) According to the TAC, Chief Bidou had Captain Whitney fired for attempting to disband the gang. (TAC ¶¶ 47-51, 57.) Plaintiffs also claim more generally that the City of Vallejo and Chief Bidou, as the VPD's final decision-maker, proximately caused the violation of McCoy's constitutional rights by failing to address and/or ratifying the culture, policy, or pattern and practice of officers using excessive force against citizens without consequence. (TAC ¶¶ 59, 61-63, 75-79.)
In December 2021, the undersigned granted in part plaintiffs' motion to compel production of an independent internal investigative report compiled in 2021 regarding badgebending within the VPD (“the Giordano Report”). (ECF No. 147.) The Giordano Report, which the court reviewed in camera, revealed that some VPD officers and supervisors had bent their badges (or badges of others) in connection with being involved in a shooting on duty. As noted in that order, the Report's findings did not necessarily confirm plaintiffs' theory of the reasons for, or meaning of, officers bending their badges. (ECF No. 147 at 8 n.4.) However, the court reasoned that
[t]he level to which bending badges pervaded the [VPD] such that Bidou and the City cannot claim reasonable ignorance of it, or Bidou's actual knowledge of the badge bending is key to proving the Monell claim. And evidence that any particular individual defendant engaged in badge bending-or was inspired by a culture of badge bending or lackluster discipline in the VPD-would go toward proving their motivation for shooting McCoy without warning and in the reckless manner alleged.(Id. at 8.)
Discovery has continued since. In August 2022, plaintiffs took the depositions of five current or former members of the VPD, two of whom are named defendants in the case. During each of these depositions, defense counsel instructed the deponent not to answer one or more questions posed by plaintiffs' counsel. After unsuccessful meet and confer efforts, plaintiffs brought this motion to compel on August 30, 2022. (ECF No. 174.) Plaintiffs seek to compel further depositions for each witness regarding all questions not answered due to an improper instruction from defense counsel; and plaintiffs also request sanctions in the form of (a) requiring defendants to carry the costs of the renewed deposition, and (b) paying plaintiffs' reasonable attorney fees for bringing this motion. (Joint Statement at 24-25, 28.)
At defendants' request, plaintiffs filed a redacted version of the Joint Statement on the docket. (ECF No. 180.) Defendants simultaneously emailed to the court an unredacted version of the Joint Statement, proposed redacted versions of numerous exhibits and declarations related to the Joint Statement, and a request to seal/file the documents with redactions. (See ECF No. 181.)
DISCUSSION
A. Plaintiffs' Motion to Compel
1. Legal Standard
The scope of discovery under Federal Rule of Civil Procedure 26(b)(1) is broad. Discovery may be obtained as to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). “The relevance standard is extremely broad, especially in civil rights excessive force cases.” James v. Hayward Police Dep't, 2017 WL 2437346, * 1 (N.D. Cal. Feb. 27, 2017) (citing Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995)). “Relevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016). The court may limit discovery if it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive”; or if the party who seeks discovery “has had ample opportunity to obtain the information by discovery”; or if “the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).
“The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, 2009 WL 1390794 at *1 (S.D. Cal. May 14, 2009) (citations omitted). “Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Id. Notably, “the burdens on a motion to compel versus a motion for protective order are reversed-with the party requesting discovery on a motion to compel having to show relevance, but the requested party having to show irrelevance on a motion for protective order.” Food Mkt. Merchandizing, Inc. v. California Milk Processor Bd., No. 2:15-CV-1083-TLN-CKD, 2022 WL 1811076, at *4 n.5 (E.D. Cal. June 2, 2022).
“A party seeking discovery may move for an order compelling an answer . . . . if . . . a deponent fails to answer a question asked under Rule 30 or 31.” Fed.R.Civ.P. 37(a)(3)(B)(i). “Generally, instructions not to answer questions at a deposition are improper.” Vasquez v. Leprino Foods Company, No. 1:17-cv-0796-AWI-BAM, 2019 WL 1934015, at *2 (E.D. Cal. May 1, 2019) (citing Detoy v. City and County of San Francisco, 196 F.R.D. 362, 365 (N.D. Cal. 2000)). “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed.R.Civ.P. 30(c)(2) (emphasis added); see also Covington v. Curtis, No. SA CV 12-1258 FMO (ANx), 2013 U.S. Dist. LEXIS 53406, at *6 (C.D. Cal. Apr. 12, 2013) (Rule 30(c)(2) “provides the exclusive grounds for instructing a deponent not to answer” (quotation omitted)). “If a party believes that a particular question asked of a deponent is improper for any other reason, that party may object; however, ‘the examination still proceeds; the testimony is taken subject to any objection.'” Mendez v. R+L Carriers, Inc., 2012 WL 1535756, at *1 (N.D. Cal. Apr. 30, 2012) (quoting Fed.R.Civ.P. 30(c)(2)).
2. Analysis
Of the three exclusive scenarios that allow an instruction not to answer, only one (to preserve privilege) is applicable to the depositions in question. Here, there was no court-ordered limitation of the deposition testimony, and defendants made no motion to terminate any of the five depositions pursuant to Rule 30(d)(3). The court rejects defendants' arguments that many of the instructions not to answer were to enforce a limitation ordered by the court by virtue of the undersigned's rulings on the degree to which the Giordano Report could be redacted before being produced to plaintiffs' counsel. (Joint Statement at 5, 17, 19, 23, 29, 31.) Although the court acknowledges the parallels between some of the information ordered redacted in the Giordano Report and the topics of questioning challenged at the deposition, the court's December 2021 discovery order (ECF No. 147) did not constitute a court ordered limitation of permissible deposition topics within the meaning of Rule 30(c)(2).
Therefore, the only permissible basis for defense counsel's instructions not to answer was to preserve a privilege. A review of the deposition transcripts reveals that defense counsel instructed deponents not to answer based on a wide variety of objections: privacy, outside the scope of discovery, calling for improper opinion, irrelevance, argumentative question, abusive or harassing line of questioning, proportionality, overbreadth and ambiguity, speculation, improper hypothetical, official information privilege. All of these grounds-except for privacy and the official information privilege-are patently improper grounds for instructing a witness not to answer. See, e.g., Boyd v. University of Maryland Med. System 173 F.R.D. 143, 147 (D. Md. 1997) (instruction not to answer is “presumptively improper”); Vasquez, 2019 WL 1934015, at *6 (instruction not to answer based on relevance or as outside the scope of discovery are improper); Arcadian Cap., LLC v. Cura Partners, Inc., 2021 WL 1153356, at *1 (C.D. Cal. Feb. 22, 2021) (objection of calling for legal opinion not proper basis for instruction not to answer); Robinson v. Chefs' Warehouse, 2017 WL 4509142, at *3 (N.D. Cal. Oct. 10, 2017) (finding improper instructions not to answer based on exceeding the scope, harassing the witness, lack of relevance); see also Rutter Group Prac. Guide Fed. Civ. Pro. Before Trial Ch. 11(IV)-A § 11:1565 (“Rule 30(c)(2) renders ‘relevancy' objections meaningless in most depositions. The deponent must even answer questions calling for blatantly irrelevant information ‘subject to the objection.'”).
Although the court understands defense counsel's desire to cut short certain lines of questioning that defense counsel deemed invasive and/or irrelevant, the proper remedy was not to simply instruct the deponent not to answer-unless to invoke a particular privilege. See Mashiri, 2014 WL 4608718, at *2 (“If counsel for Plaintiff believed that counsel for Defendant was asking the same question repeatedly in bad faith or to unreasonably annoy, embarrass or oppress Plaintiff, counsel's option was to move to terminate or limit the deposition under Rule 30(d)(3).”); Cobell v. Norton, 213 F.R.D. 16, 27 (D.D.C. 2003) (alleged “harassment” is not a proper ground for instructing witness not to answer). On at least two occasions, defense counsel instructed a deponent not to answer while expressly confirming-in answer to plaintiffs' counsel-that he was not basing that instruction on any privilege. (See Ramsay Depo. pp. 94-95; Horton Depo. p. 129.)
The only arguable privileges counsel asserted as grounds for the instructions not to answer were the right to privacy and the official information privilege. The court sets out the general standards for assessing these two types of objections before then addressing the individual depositions.
i. Privacy Objections
Although privacy is not technically a “privilege,” see E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“the right to privacy is not a recognized privilege or absolute bar to discovery”), courts sometimes entertain privacy objections as potentially proper bases for instructions not to answer. See Toman v. Glomboske, 2021 WL 3503062, at *4-5 (C.D. Cal. Mar. 25, 2021) (analyzing privacy objections as basis for protective order to preclude further depositions); Williams v. City of Long Beach, 2020 WL 7059601, at *2 (C.D. Cal. Oct. 27, 2020) (addressing privacy rights of non-party police officers on motion to compel further deposition testimony); McClure v. Prisoner Transportation Servs. of Am., LLC, No. 1:18-CV-00176-DAD-SKO, 2020 WL 1182653, at *2-3 (E.D. Cal. Mar. 12, 2020) (proceeding to assess privacy objection after finding improper instructions not to answer based on relevance or scope); Robinson, 2017 WL 4509142, at *2-3 (assessing privacy objection as basis for instruction not to answer, before ultimately overruling that objection). But see Mashiri, 2014 WL 4608718, at *2 (finding that none of the asserted objections, including “objections based upon privacy” justified an instruction not to answer, while also noting that stipulated protective order obviated privacy concerns); Arcadian Cap., 2021 WL 1153356, at *1 (finding relevance, privacy, and calling for legal opinion not proper bases for instruction not to answer, and noting that protective order could address any legitimate privacy concerns).
“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.” Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995); see Laub v. Horbaczewski, 331 F.R.D. 516, 522 (C.D. Cal. 2019). “In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential.” Soto, 162 F.R.D. at 616 (citing Kelly, 114 F.R.D. At 660). “However, these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments.” Id. Further, a carefully drafted protective order can “minimize the impact” of disclosure. Id.
ii. Objections Based on the Official Information Privilege
“Federal common law recognizes a qualified privilege for official information.” Soto, 162 F.R.D. at 613 (citing Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975)). “In determining what level of protection should be afforded by this privilege, courts conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” Id. “In the context of civil rights suits against police departments, this balancing approach should be ‘moderately pre-weighted in favor of disclosure.'” Id. (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 1987)).
A party raising an official information privilege objection must first make a “substantial threshold showing,” in the form of “a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit.” Id. A so-called Kelly affidavit must include:
(1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests[;] and (5) a projection of how much harm would be done to the threatened interests if
disclosure were made.Id. at 613 (citing Kelly, 114 F.R.D. at 670).
The party resisting discovery must specifically describe how disclosure of the requested information in that particular case would be harmful. Soto, 162 F.R.D. at 613-14. If the opposing party fails to meet the threshold burden requirement of establishing cause to apply the privilege, the privilege will be overruled. Chism v. County of San Bernardino, 159 F.R.D. 531, 533 (C.D. Cal. 1994). If the Kelly affidavit is found sufficient, then the court proceeds to balance the parties' interests. Soto, 162 F.R.D. at 613.
At the subject depositions, defense counsel instructed only former Captain Lee Horton not to answer questions based on the official information privilege. As their Kelly affidavit in support of this objection, defendants provide a declaration by City of Vallejo Assistant City Attorney Katelyn Knight, who represents both the City and the individual VPD officers in this case (alongside private defense counsel). (ECF No. 181.2.) The court finds that Ms. Knight's affidavit satisfies the first three elements of the Kelly test. Although Ms. Knight is not an official within the VPD itself, she is unquestionably a City official with knowledge of the matters plaintiffs' counsel sought to elicit from Horton: the nature of the City's litigation with Captain Whitney and the VPD personnel investigations that may have factored into his discharge. See Soto, 162 F.R.D. at 613 (requiring “a declaration or affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit”). The court addresses the final two elements in the context of the individual objections asserted at former Captain Horton's deposition.
iii. Thompson Deposition
With respect to the deposition of defendant Officer Mark Thompson, only one unanswered question is at issue in this motion. Plaintiffs' counsel asked Officer Thompson, who was one of the six officers involved in the McCoy shooting, how many alcoholic beverages he typically drinks on his days off. (Joint Statement at 9, 16; Thompson Depo. p. 37.) Defense counsel objected to the question based on privacy and being outside the scope of discovery, and instructed Thompson to answer only as to around the time of the incident in February 2019. (Thompson Depo pp. 37-40.)
Exceeding the scope of discovery is not a proper ground for an instruction not to answer. As for the privacy objection, the court balances plaintiffs' need for the information (i.e., its degree of relevance) against the officer's privacy interest. Officer Thompson answered how much and what type of alcohol he typically drank in February 2019, which was undisputedly relevant to his reaction time and competence at the shooting. Plaintiffs argue at a high level of generality that VPD members' present drinking habits are relevant because “[m]any officers” have denied excessive drinking during and before the shooting, and their present drinking habits “impact the credibility of those statements.” (Joint Statement at 27.) Plaintiffs fail to develop this impeachment argument and offer no explanation for the relevance of Officer Thompson's present drinking habits in particular. See Bryant, 2009 WL 1390794 at *1 (party moving to compel has burden to show relevance of requested discovery). On the other side, the court sees a slight privacy interest in not sharing the details of an officer's alcohol consumption-albeit quite a minimal interest in light of the existing protective order (ECF No. 21).
Given that plaintiffs raise no other subjects to be addressed further with Officer Thompson, the court will not order a reconvening of his deposition for this one question.
iv. Glick Deposition
As to the deposition of defendant Officer Bryan Glick, plaintiffs' motion challenges three questions that went unanswered at defense counsel's instruction: one question soliciting Officer Glick's opinion of how another officer should have been disciplined for his conduct in the McCoy shooting, and two questions asking if Officer Glick felt harassed or upset by this line of questioning (in response to defense counsel's objections on those grounds). (Joint Statement at 11-12, Glick Depo. at 11:33:43 - 11:36:48.)
Defense counsel did not ground his instructions not to answer in any privilege, though he referenced the privacy rights of the other officer about whom plaintiff's counsel was inquiring. As laid out above, an instruction not to answer is not an appropriate response to purportedly irrelevant or harassing lines of questioning. Regarding the first question, the court need not decide whether the other officer's privacy interests outweigh plaintiff's need for the disputed opinion testimony from Officer Glick because, again, plaintiffs fail to make any argument as to why this testimony is relevant to their claims. As to the second two questions, although the court does not condone the improper instructions not to answer (as reflected in the sanctions ordered below), the court also sees no conceivable need to reconvene a deposition to determine whether Officer Glick felt harassed at his August 17 deposition.
Plaintiffs' motion is denied as to Officer Glick's deposition as well.
v. K. Tribble Deposition
From the deposition of former Lieutenant Kent Tribble, plaintiffs likewise challenge three questions that went unanswered at defense counsel's instruction: two regarding Tribble's drinking habits and one regarding Tribble's recreation habits with an officer who had a bent badge and had bent other officers' badges. (Joint Statement at 10.) Tribble is not a defendant in this case, but he was one of 6-9 lieutenants within the VPD during the time of the McCoy shooting-placing him two ranks below the Chief (just after the two captains) at the time. (Joint Statement at 6, 10.) Tribble retired from the VPD in 2021. (Tribble Depo. p. 226.)
Defense counsel instructed Tribble not to answer any questions regarding his drinking habits-whether before, during, or after the McCoy shooting-on privacy grounds; and counsel also asserted privacy as the basis for not answering the question about Tribble's recreation with the other officer. (Tribble Depo. pp. 162-63, 227-28.)
In conducting the privacy balancing on these topics, the court concludes that testimony about Tribble's drinking habits surrounding the McCoy shooting is relevant to plaintiffs' Monell claim; whereas testimony about Tribble's present drinking habits is not. Plaintiffs are pursuing a theory that badge-bending occurred as part of an overall VPD culture of drinking after shooting incidents, and that the department tolerated an environment of alcohol abuse that encouraged officers to use excessive force. Therefore, the court rejects defendants' argument that alcohol use at or before the shooting “is only relevant as to shooting officers.” (Joint Statement at 17.) As a VPD commander at the time, Tribble's drinking habits before and surrounding the incident bear on the question of whether the VPD's higher-ranking members may have been drinking to a level that could impact (a) their competence and ability to prevent or discipline problematic rituals and uses of excessive force, or (b) the credibility of their testimony about that period. The court notes that public testimony by Tribble from March 2022 in an unrelated state court criminal case suggests that Tribble brought the badge-bending practice to the VPD in 2003 and that he bent the badges of at least 11 VPD officers involved in shootings. (Joint Statement at 6.) Another more junior VPD officer also publicly testified in that criminal case that he viewed Tribble as a “reckless,” “scary” person with an alcohol problem. (ECF No. 180.4 at 4, 8-9; Transcript of 3/22/2022 morning session in California v. Dominic James Milano, No. VCR233208, (Cal. Super. Ct. Solano Cty.) This makes questioning Tribble on his alcohol consumption around the time of the McCoy shooting all the more likely to yield relevant testimony.
VPD supervisors' alcohol use following the shooting and up to the end of 2020 (by which point the badge-bending practice was becoming publicly known) is also relevant because plaintiffs claim that the VPD also had a culture of not investigating and/or covering up misconduct-and supervisors' levels of competence and credibility would bear on the degree to which that culture persisted after the McCoy shooting. However, as with Officer Thompson (above), plaintiffs have not demonstrated how the present drinking habits of VPD members (whether officers or supervisors) are relevant.
On the other side of the balance, whatever minimal privacy interest Tribble possesses in his past drinking habits can be adequately protected by designating it Confidential under the parties' protective order. See Arcadian Cap., 2021 WL 1153356, at *1 (finding on motion to compel further deposition testimony that to the extent deponent's responses implicate legitimate privacy concerns, they could be subject to the existing protective order). Accordingly, the court will grant plaintiffs' motion as to Tribble's deposition.
Defendants propose that plaintiffs should propound additional interrogatories to gather answers to any questions that the court orders must still be answered. (Joint Statement at 32.) However, written discovery seems an inefficient method of resuming this line of questioning which might require additional and unforeseeable follow-up questions, depending on Tribble's answers. Therefore, the court will order the resumption of a limited deposition of Kent Tribble.
As to the recreation-related question, plaintiffs argue that the desired testimony is relevant to show how Tribble and another officer spent time together and whether it is credible that they never discussed badge bending before the McCoy shooting. The court finds this topic relevant, and the protective order will similarly protect whatever purported privacy interest Tribble has in his sporting habits. Although the specific unanswered question appears to have very limited utility, and Tribble already answered many of plaintiffs' counsel's more relevant questions on the topic, the court orders Tribble to answer this final line of questioning given that his further testimony is already being required as to the alcohol topic.
Therefore, the court orders that Kent Tribble's deposition be resumed for the limited purpose of eliciting his testimony on the above-identified topics. That testimony shall be designated Confidential under the stipulated protective order, unless both sides agree otherwise.
vi. Ramsay Deposition
Next, plaintiffs challenge some 14 questions that Captain Drew Ramsay was instructed not to answer at his deposition. (Joint Statement at 10-11.) Like Tribble, now-Captain Ramsay is not a defendant in this case, but around the time of the McCoy shooting he was a sergeant (the rank just below lieutenant) charged with internal affairs investigations at the VPD. (Ramsay Depo. p. 98.)
Defense counsel instructed Ramsay not to answer the first 8 questions at issue based on objections that included an assertion of the right to privacy, and those are analyzed further below. For the remaining 6 questions, no privilege was asserted in support of the instructions not to answer. (Ramsay Depo. pp. 55-56, 94-97.) Defense counsel rested the instructions exclusively on objections like calling for improper opinion, relevance, proportionality, and argumentativeness. (Id.) This was improper, as explained above. However, a review of the transcript satisfies the court that Captain Ramsay essentially answered 4 of the final 6 questions anyway, and that the other 2 questions would not yield relevant testimony. Plaintiffs fail to spell out their argument for the relevance of the testimony they seek to compel from Captain Ramsay, resting instead on the fact that defense counsel's instructions violated Rule 30(c)(2). While breaking the rules warrants sanctions, it does not automatically warrant compelling the underlying testimony at issue.
As to the 8 privacy-based objections, the first 5 questions Ramsay was instructed not to answer asked about Ramsay's current height and weight, former weight at the time of the shooting, whether he experienced weight issues due to the shooting, his exercise routine before and after the incident, and whether he attributed any change in that routine to the shooting. (Ramsay Depo pp. 24-27.) Again, plaintiffs fail to explain the relevance of these subjects. Ramsay was not involved in the McCoy shooting, and it is totally unclear how his height or weight might factor into the Monell claim. The court also will not guess at the relevance of any changes in Ramsay's weight or exercise routine following the shooting. Accordingly, defendants' privacy objection is sustained for these 5 questions.
The 6th question Ramsay was instructed not to answer was regarding his current drinking and illicit drug use. (Ramsay Depo pp. 27-28.) Ramsay answered both questions as to the time surrounding the shooting (both while on duty and off duty); testified that he has never used drugs as a member of the VPD (id. pp. 28-31); and, as with Officer Thompson and Lt. Tribble, plaintiffs fail to show the relevance of whether Ramsay currently drinks. Defendants' privacy objection is sustained for the 6th question as well.
Finally, the 7th and 8th unanswered questions asked Ramsay about how and why he used to live with another member of the VPD. (Ramsay Depo. p. 33.) Defense counsel instructed Ramsay not to answer based on privacy and based on a theory that in permitting certain redactions to the Giordano Report the court had previously precluded discovery regarding officers' personal living arrangements. (Id.; see Joint Statement at 19.) The court's prior ruling on redactions in the Giordano Report should not be construed so broadly. Discovering the nature of the relationships between members of the VPD reasonably close to the time of the McCoy shooting (say, within 5 years or so) is relevant to plaintiffs' Monell claim because that information would bear on the likelihood that knowledge of the badge-bending practice was not widespread and did not reach Chief Bidou before the shooting. However, in this particular instance, the court knows from its prior in camera review of the Giordano Report that these deposition questions were inquiring about Ramsay's living situation for a 6-month period in 2005. While more recent shared housing experiences between VPD members might be relevant to the level of awareness about badge bending, the questions about who Ramsay lived with 14 years before the McCoy shooting is not. These privacy objections are sustained as well.
Therefore, plaintiffs' motion is denied as to Captain Ramsay's deposition.
vii. Horton Deposition
The fifth and final deposition at issue is that of former Captain Lee Horton, who was one of Chief Bidou's two captains at the top of the VPD (alongside Captain Whitney) at the time of the McCoy shooting. (Joint Statement at 6, 12.) Horton retired from the VPD in 2020 and is not a defendant in this case.
By the court's count, Horton did not answer some 16 questions at defense counsel's instruction. Of these unanswered questions, all but 2 of the instructions were based on objections that included the right to privacy and/or the official information privilege. The court takes each question or set of questions in turn.
As with Ramsay's deposition, the first set of (four) questions Horton was instructed not to answer asked about Horton's current height and weight, his former weight at the time of the shooting, any weight change since the shooting, and whether the shooting impacted his physical health. (Horton Depo. pp. 20-21, 24-26.) For the same reasons just discussed with Ramsay, the court sustains defendants' privacy objection for these 4 question.
Likewise, the court sustains the privacy objections asserted for the 5th question (id. page 26, lines 22-25), 6th question (id. page 27, lines 5-8), and 16th question (id. page 154, lines 14-15) that Horton was instructed not to answer, because of plaintiffs' failure to explain the relevance of the answers to these questions probing into medical information.
The 7th, 10th, and 12th questions Horton was instructed not to answer inquired about information that Horton learned about fellow Captain Whitney in 2017, Horton's opinion of Whitney based on the information learned, and their subsequent conversation(s) about that information. (Id. pp. 49-51, 59.) Defense counsel instructed Horton not to answer, or to limit his answers to, these questions based on (i) Captain Whitney's right to privacy and (ii) the official information privilege because the information Horton learned about Whitney in 2017 became the subject of a personnel investigation of Captain Whitney. The court need not decide whether defense counsel could properly instruct Horton not to answer based on the privacy rights of Captain Whitney, whom they do not represent, because the court sustains the official information privilege objection.
Defendants argue, in Ms. Knight's Kelly affidavit, that permitting Horton to answer these questions would have required him to divulge the contents of three VPD personnel investigations, one of which ultimately resulted in Captain Whitney's termination and is the subject of the Whitney's ongoing employment lawsuit against the City. (ECF No. 181.2 ¶ 3.) Defendants further argue that Horton's testimony on the matters underlying the personnel investigation(s) would potentially subject the City to further liability in that suit for revealing confidential employment records protected under California law. (Id. ¶ 5.) This argument is bolstered by the fact that Whitney's counsel in the employment litigation has requested a protective order to cover the personnel investigation that resulted in Whitney's termination. (Id. ¶ 7.)
As for why the stipulated protective order does not adequately protect against these risks, defendants argue that disclosure even to plaintiffs and plaintiffs' counsel would create this risk of additional liability-and violate Horton's and Whitney's privacy rights. (Id.) In balancing these interests against plaintiffs' need for the testimony, the court finds that the risks of harm to defendants wins out with respect to these three questions. In the deposition, plaintiffs' counsel obtained Horton's testimony as to the nature of his relationship with Captain Whitney, his opinion of Captain Whitney, and the general basis for that opinion. Given the City's averment that the resulting personnel investigations of Captain Whitney had nothing to do with badge bending or any use of force, the court does not see a great enough need for plaintiffs to discover the precise reasons for Horton's and Whitney's relationship being as it was.
The 8th, 9th, 13 th, and 15th questions Horton was instructed not to answer all related to his relationship with Chief Bidou prior to the McCoy shooting. Although Horton was instructed not to answer the 8th question (Horton Depo. page 55, lines 6-7), he had in fact previously answered that question (Horton Depo. page 51, line 7 to page 52, line 22). Skipping to the 15th question (Horton Depo. page 137, line 11), the court cannot tell from the limited excerpt of the transcript what topic was being discussed when Horton was instructed not to answer-and it appears the question may have been sufficiently answered despite defense counsel's instruction.
As for the 9th and 13 th unanswered questions, however, the court overrules defense counsel's objections. The 9th question (Horton Depo. page 55, line 18) and the 13th question (Horton Depo. page 103, lines 22-23) bear directly on one of the central aspects of the Monell claim: the nature of the relationship between Chief Bidou and his second-in-command captains, including Captain Horton, and how they communicated with one another around the time of the McCoy shooting. The Kelly affidavit from Ms. Knight speaks only to the risk of harm from disclosing details of the personnel investigations of Captain Whitney. While those details need not be disclosed (as just discussed), it appears likely that Horton could answer questions 9 and 13-and related follow-up questions-without necessarily revealing such details.
Accordingly, the court overrules the official information privilege objection asserted for question 9. The court also sees no basis to sustain defendants' instruction not to answer question 9 based on the other objections of privacy or relevance. Defense counsel asserted no privilege at all in support of the instruction not to answer question 13. (Horton Depo pp. 103-04, stating only that it was argumentative, irrelevant, not proportional, and seeking improper opinion.)
The final disputed question 14 asked whether Horton had any interest in reading the public testimony given by members of the VPD (including Tribble, as mentioned above) in the Milano state court criminal case. (Horton Depo. p. 129.) Defense counsel instructed Horton not to answer purely based on non-privilege objections. (Id., asserting improper opinion, argumentative, irrelevant, and expressly disclaiming assertion of any privilege.) This is another example of a patently improper instruction not to answer. However, the court also sees no utility in allowing plaintiffs to inquire further into Horton's level of interest in reading the Milano testimony.
Therefore, the court orders that Lee Horton's deposition be resumed for the limited purpose of eliciting his testimony on the above-identified questions 9 and 13, and follow-up questions related to the nature of Horton and Bidou's relationship and how they communicated with each other from 2017 through Bidou's retirement in 2019. That testimony shall be designated Confidential under the stipulated protective order, unless both sides agree otherwise.
3. Sanctions
Under Rule 37, if a motion to compel discovery is granted in part and denied in part, the court may “apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C). As to depositions, under Rule 30, “[t]he court may impose an appropriate sanction-including the reasonable expenses and attorney's fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed.R.Civ.P. 30(d)(2). District courts have wide discretion in imposing sanctions under both of these subsections. See Morgan Hill Concerned Parents Ass'n v. California Dep't of Educ., 2017 WL 3116818, at *5 (E.D. Cal. July 21, 2017) (Rule 37(a)(5)(C)); Batts v. Cty. of Santa Clara, 2010 WL 545847, at *2 (N.D. Cal. Feb. 11, 2010) (Rule 30(d)(2)). As Rule 30(d)(2) sanctions, courts frequently impose redeposition costs where “counsel was unjustified in instructing a deponent not to answer.” Lucas v. Breg, Inc., 2016 WL 2996843, at *2 (S.D. Cal. May 13, 2016) (quotation omitted).
Here, the court is granting only a small fraction of plaintiffs' motion to compel by ordering the reconvening of two of the five depositions, and only for very limited lines of inquiry. The court therefore imposes no attorney's fees sanctions under Rule 37, leaving each side to bear its own costs and expenses for litigating this motion. See Fed.R.Civ.P. 37(a)(5)(C). Based on plaintiffs' counsel's failure to adequately support much of their motion to compel, an attorneys' fees award would not be in the interests of justice. See Fed.R.Civ.P. 37(a)(5)(A)(iii).
However, sanctions under Rule 30(d)(2) are warranted by defense counsel's continuous invocation of non-privilege-based reasons to instruct deponents not to answer. Even when plaintiffs' counsel pointed out that defense counsel's instructions went against Rule 30, defense counsel continued to instruct the above deponents not to answer based on his belief that the questioning was too irrelevant or invasive. While the court ultimately agreed with defense counsel in several instances listed above, defense counsel's conduct still plainly violated the federal rules. See Lucas, 2016 WL 2996843, at *4 (“Regardless of whether a judge would have permitted such questions, Plaintiffs' counsels' role during a deposition does not include the authority to essentially rule on their own objections and determine whether such questions need to be answered.”).
Because these violations necessitate the reconvening of two depositions, the court will require defense counsel to bear any reasonable expenses associated with facilitating the follow-up depositions of Lee Horton and Kent Tribble. See, e.g., McClure, 2020 WL 1182653 at *6.
B. Defendants' Request to Seal
Finally, the court turns to defendants' request to seal and/or redact portions of the Joint Statement and the declarations and exhibits offered in support. (See ECF No. 181.) Defendants request that the court protect from public view (1) most (but not quite all) of the excerpts of the five subject depositions-all of which were designated Confidential under the parties' stipulated protective order; (2) various portions of the Joint Statement that discuss materials designated Confidential; and (3) a few lines of Ms. Knight's declaration.
Plaintiffs filed on the docket the Joint Statement with redactions proposed by defendants, along with several exhibits. (ECF No. 180.) Defendants emailed their request to seal directly to the court, along with unredacted versions of the Joint Statement and further exhibits that they propose be filed under seal or with redactions. Plaintiffs oppose the request to seal and emailed their opposition directly to the court along with several additional exhibits; and defendants emailed a reply along with three more exhibits.
1. Legal Standard
“[T]here is a ‘strong presumption in favor of access' to information filed with a court.” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 429 (9th Cir. 2011) (quoting Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). In general, to overcome the presumption, a party seeking to seal judicial records must demonstrate not just “good cause,” but “compelling reasons.” Id. (citations omitted). “Despite this strong preference for public access,” the Ninth Circuit has “carved out an exception for sealed materials attached to a discovery motion unrelated to the merits of a case.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1097 (9th Cir. 2016) (cleaned up). When this exception applies, a party seeking to file under seal “need only satisfy the less exacting ‘good cause' standard” found in Rule 26(c). Id.; see Fed.R.Civ.P. 26(c)(1) (stating that a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense”). The documents defendants wish to file under seal or with redactions are all offered as part of, or in support of, the instant non-dispositive discovery motion. Thus, as the parties agree, defendants must demonstrate “good cause” for the protection sought. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599 (1978) (decisions on public access are “best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case”).
To establish good cause, first, the party seeking protection (here, defendants) must show that “specific prejudice or harm will result,” absent sealing. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). “A party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted.” Foltz, 331 F.3d at 1130. This court's local rules echo these principles by requiring requests to seal to “describe generally the documents sought to be sealed, the basis for sealing,” and the “statutory or other authority for sealing,” among other things. E.D. Cal. R. 141(b).
Second, if the court concludes that denying protection will cause particularized harm, it must balance “the public and private interests” to decide whether protection is necessary. Roman Catholic, 661 F.3d at 424. The Ninth Circuit has instructed district courts to conduct this balancing under the factors identified in Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). See Roman Catholic, 661 F.3d at 424. But even when both analytical steps weigh in favor of protecting the material “a court must still consider whether redacting portions of the discovery material will nevertheless allow disclosure.” Id. at 425.
2. Analysis
As a threshold matter, defendants maintain that plaintiffs are attempting to use this motion as a vehicle to make public significant amounts of discovery material currently designated Confidential under the parties' stipulated protective order (“SPO”), without following the procedure outlined in the SPO for challenging a confidentiality designation. (Joint Statement at 15; ECF No. 181.1 (Slentz Decl.), Ex. B; Reply ISO Request to Seal at 2, 6.) The court understands defendants' complaint to be that they have been deprived of the meet-and-confer requirements set forth in Section 6.2 of the SPO and have had to brief the good cause for retaining the confidentiality of the subject materials on a more expedited basis than they otherwise would if plaintiff had challenged the Confidentiality designations as provided in Section 6 of the SPO. (Reply ISO Request to Seal at 6.)
The court shares defendants' suspicion that plaintiffs wish to make public as much discovery information as possible related to badge-bending within the VPD. The court will continue to serve as an intermediary in that regard, ensuring that only information whose value to the public outweighs the confidentiality interests hits the public record. See Glenmede Tr. Co., 56 F.3d at 483 (good cause factors). However, the court does not see how plaintiffs' counsel has acted contrary to either this court's Local Rules or the terms of the SPO in litigating this motion and the request to seal. While plaintiffs' portion of the Joint Statement indeed contains far more Confidential-designated information than required for the motion to compel (see Joint Statement at 7-9), plaintiffs filed the Joint Statement with all of defendants' proposed redactions. Plaintiffs' counsel did not, nor does it appear they ever intended to, publicly file any Confidential-designated information on the docket.
This court's process for a movant requesting to file under seal documents designated confidential by an opposing party is that the movant files on the docket a notice of the request to seal and sends to the court a request to seal (along with the subject materials) advising that the request is based on an opposing party's designation of the materials as confidential under a stipulated protective order. The non-movant party who designated the materials confidential then bears the burden of making the necessary showing to justify protection under Local Rule 141 and the case law set forth above. This is precisely what plaintiffs' counsel offered to do with this motion, although defendants opted to instead file the sealing notice themselves. (ECF No. 181.)
Plaintiffs' decision to oppose defendants' request to seal also does not violate either the letter or the spirit of the SPO. Defendants continue to argue, as they did in their last request to seal (accompanying plaintiffs motion to compel production of the Giordano Report) that “there is a rebuttable presumption that records subject to a protective order should be ordered sealed.” (Request to Seal at 3.) The court already informed defendants that no such presumption exists when the records in question are subject to a stipulated protective order. (ECF No. 142 at 6, explaining that defendants “are wrong” based on Roman Catholic, 661 F.3d at 424.) The court expects not to see further mention of this supposed rebuttable presumption in future briefing from defendants in this case unless they are prepared to demonstrate why the court's current reading of the law is incorrect. In the context of seeking to file under seal documents covered by the SPO, the burden remains squarely on the party opposing disclosure to show good cause. See Roman Catholic, 661 F.3d at 424 (“If a party takes steps to release documents subject to a stipulated order, the party opposing disclosure has the burden of establishing that there is good cause to continue the protection of the discovery material.”).
The risk defendants run in creating, or failing to independently resolve, discovery disputes with opposing counsel is that underlying discovery materials may become public in the course of the court resolving a discovery motion-if defendants fail to show good cause for protection. (The same goes for plaintiffs, of course, but they do not share the same institutional confidentiality concerns as the City.) To the extent the parties feel the briefing schedule for a request to seal on a motion to compel is too truncated, they are welcome to offer a stipulated proposal to extend the briefing deadlines (or an ex parte application, if necessary).
With all of that being said, the court finds that in this motion defendants have shown good cause for all of the requested redactions and filings under seal. The majority of the materials sought to be protected relate in one way or another to internal personnel investigations within the VPD, and the rest offer no obvious public value to counterbalance the privacy interests involved.
While plaintiffs argue that much of the badge-bending-related information sought to be protected is already in the public domain by virtue of the public testimony in the Milano criminal case, they simply attach hundreds of pages of transcripts to their opposition to the request to seal without any specific citations. The court will not wade through such voluminous records to make plaintiffs' argument for them.
Accordingly, defendants' request to seal is granted.
CONCLUSION
For the above reasons, IT IS HEREBY ORDERED that:
1. Plaintiffs' motion to compel (ECF No. 174) is GRANTED IN PART and DENIED IN PART, and the September 28, 2022, hearing on that motion is VACATED;
a. By no later than October 5, 2022, the parties SHALL meet and confer to decide upon a mutually agreeable date, time, and location for conducting the reconvened depositions of Kent Tribble and Lee Horton. Each deposition is limited to no more than 20 minutes to cover the subjects identified in this order;
b. Plaintiffs' request for sanctions is granted only to the extent that defense counsel shall bear all reasonable expenses associated with facilitating these reconvened depositions;
2. Defendants' request to seal (ECF No. 181) is GRANTED;
a. Defendants shall forthwith: i. File on the docket the Declaration of Matthew Slentz with all exhibits (except those designated as Exhibits 11-14), reflecting the proposed redactions submitted to the court with the request to seal; and ii. Send to the Clerk of Court (at ApprovedSealed@caed.uscourts.gov) for filing UNDER SEAL separate PDFs of: 1. Defendants' Request to Seal; 2. The Declaration of Matthew Slentz with all exhibits (except those designated as Exhibits 11-14) in unredacted form; and 3. An unredacted complete copy of the Declaration of Katelyn Knight (the redacted version of which was already filed at ECF No. 181.2); and b. The Clerk of Court is directed to immediately file UNDER SEAL the following documents already in the court's possession in file-ready format: 1. An unredacted copy of the Joint Statement; 2. Defendants' proposed order granting the Request to Seal; 3. Plaintiffs' opposition to the Request to Seal; 4. Defendants' reply in support of the Request to Seal; and 5. Plaintiffs' objection to defendants' reply in support of the Request to Seal.