Opinion
No. C-04-0574 CW (EMC).
March 24, 2005
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS (Docket No. 94)
Plaintiff John Tennison filed suit against various defendants, including the City and County of San Francisco ("City"), the San Francisco Police Department ("SFPD"), two police inspectors (in their official and individual capacities), and an ADA (George Butterworth), alleging that Defendants violated his civil rights during the criminal investigation and prosecution of a murder case in which Mr. Tennison was the criminal defendant. More specifically, Mr. Tennison claims that Defendants (1) withheld exculpatory and impeachment evidence that likely would have led to his acquittal and (2) relied extensively on perjured testimony while ignoring and failing to investigate other exculpatory evidence. Previously, Judge Wilken granted Mr. Tennison habeas relief based on the finding that Defendants had suppressed exculpatory evidence.
Pending before the Court is Mr. Tennison's motion to compel and for sanctions. In the motion, Mr. Tennison argues that the City should be compelled to produce records of a polygraph examination, a police polygraph examiner for a second deposition, and the personnel records of Mr. Butterworth. Mr. Tennison also seeks sanctions against the City for its discovery conduct. Having considered the parties' briefs, accompanying submissions, and the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part Mr. Tennison's motion.
I. DISCUSSION
A. Polygraph Evidence
Pauline Maluina was a witness during the criminal trial of Mr. Tennison. She, along with another witness, linked Mr. Tennison to the murder of Roderick "Cooley" Shannon. Prior to the criminal trial, Ms. Maluina recanted her testimony putting Mr. Tennison at the scene of the crime. A polygraph examination was taken of Ms. Maluina, during which she denied having witnessed any murder. Ms. Maluina, however, later retracted her recantation and testified against Mr. Tennison at the criminal trial.
During the habeas proceedings, Mr. Tennison sought documents related to the investigation and prosecution of his criminal case. The City produced some information about the fact of Ms. Maluina's polygraph but "never produced the original records of the polygraph itself — the charts showing Maluina's responses to [the polygraph examiner's] questions." Mot. at 5.
After this civil case was initiated, Mr. Tennison took the deposition of the polygraph examiner, a police officer by the name of Henry Hunter. See Purcell Decl., Ex. C. During the deposition, Captain Hunter stated that the original records of the polygraph were in storage. Mr. Tennison now asks that the original records be produced immediately.
In its opposition, the City explains that original polygraph records are not kept as part of a criminal case file; rather, when a polygraph examination is done by the Police Department the records are retained in a separate file by the polygraph examiner. See Ackiron Decl. ¶ 2. The City says that "this is an anomaly with the Police Department, caused by the fact that polygraphs are inadmissible in criminal trials (California Penal Code section 351.1)." Id. ¶ 3. In its opposition, the City also contends that, on February 7, 2005, Mr. Tennison asked the City to produce the records. The City responded that it would produce the records as soon as they were retrieved from storage, if they still existed. Mr. Tennison nonetheless filed his motion to compel on February 16, 2005. That same day, the City received the records from Capt. Hunter and produced them the next day. See id. ¶ 5.
Given that the polygraph records have been produced, this issue is moot. However, in his motion as well as in his reply, Mr. Tennison also argues that the City's failure to produce the records during the habeas proceedings and during these proceedings until specifically requested is evidence of a broader discovery problem: "Throughout discovery, the City Attorney has limited his document search to the SFPD's and City Attorney's case file and has refused to search other potential sources of evidence." Mot. at 6. Mr. Tennison asks the Court to "order the City to perform a broader search of its facilities" for all of his document requests. Id.
There is no motion on this broader issue before the Court. However, to guide the parties, the Court notes that Mr. Tennison should identify specific topics on which it has good reason to believe additional documents likely exist. He and the City should meet and confer to discuss why such documents have not been provided. The City should undertake a complete investigation to make sure no documents reside outside the files of the Police Department's and City Attorney's case file which have already been searched. The City should document that investigation/search.
B. Deposition of Captain Hunter
In 1993 — several years after Mr. Tennison was convicted of murder — his counsel had a polygraph examiner by the name of Francis Connolly take the examination of Mr. Tennison and of Chante Smith, a witness who had informed the police that Mr. Tennison did not commit the murder. Mr. Connolly's opinion was that both Mr. Tennison and Ms. Smith had answered truthfully. Mr. Connolly then had Capt. Hunter of the Police Department do a blind review of the polygraph examinations, apparently looking only at the polygraph charts. Capt. Hunter's blind review — which also took place in 1993 — also reached the conclusion that Mr. Tennison and Ms. Smith had answered truthfully. At the hearing on this motion, the City stated that the 1993 blind review was in connection with Mr. Tennison's appeal of his conviction in state court.
During the deposition of Capt. Hunter in this case, Mr. Tennison's counsel tried to question Capt. Hunter about the 1993 blind review that he did. The City Attorney, however, instructed Capt. Hunter not to answer on the basis that it would constitute expert testimony.
Mr. Tennison argues that it was not proper for the City Attorney to instruct Capt. Hunter not to answer on this basis. Federal Rule of Civil Procedure 30(d)(1) provides: "A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4)." Fed.R.Evid. 30(d)(1). However, essentially, the City is arguing that the Rule 30(d)(4) exception applies in the instant case because Mr. Tennison is seeking the expert opinion of Capt. Hunter even though he has not retained Capt. Hunter for his expert services. See Fed.R.Civ.P. 45(c)(3)(B)(iii) (noting that an unretained expert may move to quash a subpoena). The threshold question therefore is whether Mr. Tennison is seeking from Capt. Hunter only lay opinion testimony or expert opinion testimony.
Rule 30(d)(4) provides:
At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
Fed.R.Civ.P. 30(d)(4).
Federal Rule of Evidence 701, which governs lay opinion testimony, provides as follows: "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 702. Part (c) was added to the rule in 2000. The 2000 advisory committee notes express agreement with the distinction that "lay testimony `results from a process of reasoning familiar in everyday life,' while expert testimony `results from a process of reasoning which can be mastered only by specialists in the field.'" Id., 2000 advisory committee notes. United States v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997), is a Ninth Circuit case that preceded the 2000 amendment to Rule 701. However, the opinion supports the above distinction between lay and expert opinion testimony, as reflected in the 2000 advisory committee notes. In Figueroa-Lopez, the defendant was charged with, inter alia, possession of cocaine with intent to distribute. See id. at 1242. During the criminal trial, law enforcement officers provided opinion testimony as to how the defendant's conduct, as observed by the officers — e.g., the use of code words, the use of a rental car, the manner of hiding the cocaine — conformed with the methods and techniques of experienced drug dealers. See id. at 1243. Over the defendant's objection, the district court allowed the testimony on the basis that the officers were all percipient witnesses. See id.
"This requirement `is the familiar requirement of first-hand knowledge or observation.'" United States v. Glenn, 312 F.3d 58, 67 (2d Cir. 2002).
The Ninth Circuit rejected this explanation by the district court, stating:
The mere percipience of a witness to the facts on which he wishes to tender an opinion does not trump Rule 702. Otherwise, a layperson witnessing the removal of a bullet from a heart during an autopsy could opine as to the cause of the decedent's death. Surely a civilian bystander, or for that matter a raw DEA recruit would not be allowed to interpret for the jury Lopez's behavior in the parking lot of May 25, 1995 as that of an "experienced" trafficker merely because that person was an eyewitness to the scene.Id. The Ninth Circuit went on to explain that, if percipient observations are "common enough" and require only a "limited amount of expertise," then they may be deemed lay witness opinion. Id. at 1245 (internal quotation marks omitted).
Ultimately, the court held that part of the officers' testimony was lay opinion testimony: "[P]art of the testimony in this case does provide us with a clear example of when a witness may give his lay opinion as to the implications of his observations. INS Special Agent Rapp testified that the movements of the Monte Carlo were `suspicious.' Under [prior Ninth Circuit case law], such testimony related to matters `common enough' to qualify as lay opinion testimony." Id. at 1246. However, the court held that the majority of the testimony was expert opinion testimony: "[R]ather than testimony `based on the perceptions of the witness' . . . the bulk of the above opinion testimony is properly characterized as testimony based on the perceptions, education, training, and experience of the witness. It requires precisely the type of `specialized knowledge' of law enforcement governed by Rule 702." Id.
Although Mr. Tennison has cited Figueroa-Lopez in support of his motion to compel, the case favors the City more than Mr. Tennison. Capt. Hunter's observations in 1993 with respect to the polygraph examinations of Mr. Tennison and Ms. Smith were not common; the observations involved more than a limited amount of expertise. The Court acknowledges that there are cases in which courts have held that testimony is not automatically expert opinion testimony juts because a witness's perceptions are informed by specialized knowledge. See, e.g., Bank of China v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004) (holding that some of the testimony of a bank employee was lay opinion testimony). However, those cases are distinguishable given the degree of expertise involved in Capt. Hunter's analysis. See id. at 182 ("[T]o the extent [the bank employee's] testimony was not a product of his investigation, but rather reflected specialized knowledge he has because of his extensive experience in international banking, its admission pursuant to Rule 701 was error."). Figueroa-Lopez is more on point, at least to testimony other than purely lay and factual statements that Capt. Hunter may make.
However, even if Capt. Hunter would be providing expert opinion testimony, that does not automatically seal him off from deposition by Mr. Tennison as an unretained expert. Federal Rule of Civil Procedure 45(c)(3)(B)(iii) provides that, if a subpoena
requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party . . . the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
Fed.R.Civ.P. 45(c)(3)(B)(iii) (emphasis added). The purpose of Rule 45(c)(3)(B)(iii) is to ensure that an expert cannot be forced to provide his or her expert services for free. See Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 148 F.R.D. 552, 557 (S.D.W. Va. 1993) ("`[C]ompulsion to give evidence may threaten the intellectual property of experts denied the opportunity to bargain for the value of their services. . . .'") (quoting Fed.R.Civ.P. 45, 1991 advisory committee notes).
In determining whether to quash or modify a subpoena calling for testimony by an unretained expert, a court may consider factors such as: "`the degree to which the expert is being called because of his knowledge of facts relevant to the case rather than in order to give opinion testimony; the difference between testifying to a previously formed opinion and forming a new one; the possibility that . . . the witness is a unique expert; the extent to which the calling party is able to show an unlikelihood that any comparable witness will willingly testify; and the degree to which the witness is able to show that he or she has been oppressed by having to testify. . . .'" Fed.R.Civ.P. 45, 1991 advisory committee notes.
In the instant case, some of the above factors favor the City. For example, Capt. Hunter is not being called so much for his knowledge of the facts relevant to the case but rather for his opinion testimony. Mr. Tennison conceded at the hearing that there is no evidence that Capt. Hunter shared the conclusions of his 1993 blind review with others in the Police Department or the prosecution; thus, there is no evidence that there was a continued suppression of evidence by Defendants after Mr. Tennison was convicted. Capt. Hunter, therefore, cannot be said to have been directly involved in or witness to the underlying events that give rise to liability. Compare Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 148 F.R.D. 552, 557 (S.D.W. Va. 1993) (finding that defendant sought primarily factual information from expert who actually investigated the site at issue); Ban Hapoalim v. American Home Assurance Co., No. 92 Civ. 3561 (KMW), 1993 U.S. Dist. LEXIS 15349, at *5 (S.D.N.Y. Nov. 1, 1993) ("American Home seeks to depose Mr. Rifkin as a fact witness who will testify from his personal knowledge regarding the inventory and business interruption claims he prepared that are at the heart of this case. American Home is not concerned with his professional opinion about the present insurance claims or about insurance claims accounting generally."); see also Young v. United States, 181 F.R.D. 344, 346 (W.D. Tex. 1997) (concluding that plaintiffs wrongly designated treating physicians as experts; "[t]hese witnesses acquired knowledge of this case by direct observation, not later consultation"). His review took place years after the trial. In addition, Capt. Hunter is not a unique expert. Since his involvement was to perform a blind review on the papers and those papers still exist, there are other experts whom Mr. Tennison can retain to evaluate the 1993 polygraph examinations.
On the other hand, some of the above factors favor Mr. Tennison. Although Capt. Hunter is not a unique expert, he has special value because his 1993 blind review would lend credibility to Mr. Connolly's evaluation of the polygraph examinations — i.e., even a police polygraph examiner agreed that the witnesses answered truthfully. In this respect, it is not likely that Mr. Tennison could obtain a comparable witness willing to testify. In addition, Capt. Hunter is not being asked to form new opinions but rather simply to recite what were his opinions that he had previously formed in 1993.
The Court resolves the balance here by looking to the purpose of Rule 45(c)(3)(B)(iii). As noted above, the purpose of the rule is not so much to protect parties to the litigation but rather to protect the unretained expert — i.e., to ensure that an expert cannot be forced to provide his or her expert services for free. As stated by one court, "[i]n a technocratic society, knowledge is an extraordinarily valuable asset, and those who possess knowledge enter the marketplace to sell it to the highest bidder. . . . In a society where knowledge is so valuable, there is something unfair about the courts permitting their processes, such as the issuance of a subpoena, to destroy that market in order to take for free the product of an individual's diligence, research, and expertise." Statutory Committee of Unsecured Creditors v. Motorola, 218 F.R.D. 325, 326 (D.D.C. 2003); see also Fed.R.Civ.P. 45, 1991 advisory committee notes ("[C]ompulsion to give evidence may threaten the intellectual property of experts denied the opportunity to bargain for the vote of their services.")
Given the purpose of the rule, the balance tips in favor of Mr. Tennison and the Court shall allow Mr. Tennison to depose Capt. Hunter on the subject matter of his 1993 blind review. However, Rule 45(c)(3)(B)(iii) provides that a court "may order appearance or production only upon specified conditions." Fed.R.Civ.P. 45(c)(3)(B)(iii). To "assure that [Capt. Hunter] will be reasonably compensated" for his time, id., the Court also orders that he be paid a reasonable fee. Mr. Tennison should meet and confer with Capt. Hunter to determine what would be a reasonable fee.
C. Personnel Files of Mr. Butterworth
Finally, in his motion to compel, Mr. Tennison asks the Court to order the City to produce the personnel files of Mr. Butterworth. Previously, on January 12, 2005, the Court ordered the production of the personnel files of the individual Defendants in the case. See Docket No. 64 (order, filed on 1/12/05). The Court's order did not specifically identify Mr. Butterworth but he is one of the individual Defendants in the case. The City did not move the Court to reconsider its order, nor did it ask Judge Wilken to review the order. Instead, the City claimed that the parties had agreed that it would not produce Mr. Butterworth's files unless after Judge Wilken made a determination on whether Mr. Butterworth is absolutely immune from suit. See Purcell Decl., Ex. K (letter, dated 10/08/04) (the letter from Tennison's counsel states, "The City also refused to produce defendant Butterworth's personnel records because of the possibility that Butterworth will be found absolutely immune from suit. But the City agreed that, if Butterworth is not dismissed, it will reconsider our request for personnel records and, if Butterworth has already been deposed at that point, will allow us to re-depose Butterworth about any records it eventually produces.").
The Court need not decide whether the parties did in fact make such an agreement. It visits the issue de novo. The question is whether there is good reason to withhold the files from discovery until after a decision on absolute immunity. In this regard, the Court finds that even if Mr. Butterworth were found to be absolutely immune, Mr. Tennison would still have the right to at least some of the documents in Mr. Butterworth's personnel file because they would be relevant to the claims against Officers Sanders and Hendrix. For example, Mr. Tennison would have the right to discover documents in the file that are related to his involvement in the criminal prosecution of Mr. Tennison. Documents relating to his credibility would be relevant as well since defense counsel conceded he is likely to give material testimony at trial.
Taking into account both the relevance of the documents in the personnel file as well as Mr. Butterworth's privacy interest in the file and the possibility of absolute immunity, the Court concludes that a proper balance is as follows: Before the determination on absolute liability, the City shall be compelled to produce any documents in Mr. Butterworth's personnel file that pertain to the incident specifically at issue in this case. In addition, any documents in the file that have to do with instances of lying or untruthfulness should also be produced because they are relevant to Mr. Butterworth's credibility. This is consistent with the Court's previous order of January 12, 2005, with respect to the personnel files of two nonparty police officers. See Order of 1/12/05, at 2 (ordering that these two categories of documents be produced from the personnel files of two nonparty police officers). In addition, the City shall be compelled to produce any documents that are related to alleged misconduct by Mr. Butterworth — more specifically, suppression of evidence, manufacture of evidence, and/or witness tampering — to the extent that the misconduct allegedly involved Officer Hendrix and/or Officer Sanders, regardless of whether such file is part of this case or another case. Such documents may have significant probative value as to Mr. Butterworth's credibility as well as to whether Mr. Butterworth and the other Defendants have engaged in a pattern or practice of the kind of misconduct alleged herein. At this juncture, until the immunity question is resolved in Mr. Tennison's favor, given the countervailing privacy concerns, documents pertaining to any alleged misconduct by Mr. Butterworth outside this case which do not involve the other two Defendants are too tenuous to the claims against Mr. Hendrix and Mr. Sanders to be discoverable.
Of course, if Judge Wilken ultimately determines that Mr. Butterworth is not protected by absolute immunity, Mr. Tennison will be entitled to a broader range of documents from the personnel file.
II. CONCLUSION
For the foregoing reasons, the Court hereby grants in part and denies in part Mr. Tennison's motion to compel. Because the City has not taken unreasonable positions with respect to the above discovery issues, the request for sanctions is denied.
This order disposes of Docket No. 94.
IT IS SO ORDERED.