KYLE JOHNSON, Case No. 21-cv-01849-BLF (VKD)
Plaintiff, ORDER RE APRIL 17, 2023 v. DISCOVERY DISPUTE RE RULE 30(B)(6) DEPOSITION CITY OF SAN JOSE, et al., Re: Dkt. No. 96 Defendants.
The parties ask the Court to resolve their dispute concerning Topics 1, 4-6, and 10-12 in plaintiff Kyle Johnson’s Rule 30(b)(6) notice of deposition to defendant City of San Jose (“City”). Dkt. No. 96. The Court finds this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b). For the reasons explained below, the Court orders the City to provide testimony responsive to Topics 1 (as narrowed), 4-6, 10, and 11. Mr. Johnson alleges that he was injured when SJPD Officer James Adgar fired a projectile at him during the George Floyd protests in San Jose, California in late May 2020. Dkt. No. 73. On March 16, 2021, he filed this action against the City and Officer Adgar asserting claims for battery and negligence, violations of his First and Fourth Amendments rights, and violation of the Bane Act. Id. ¶¶ 68-98. On December 7, 2021, Mr. Johnson served a Rule 30(b)(6) deposition notice on the City, but he chose not to proceed with the deposition as noticed. See Dkt. No. 96 at 1. Fifteen months City, with a deposition date of April 3, 2023—one week before the close of fact discovery. Id. at 2, 4. The City objected. Id. On March 24, 2023, Mr. Johnson served a further amended Rule 30(b)(6) deposition notice on the City with the same deposition date. Id., Ex. A. The City again objected on several grounds, but agreed to produce a representative to testify as to some of the topics in the notice. Id. at 1, 2, 4. The parties could not resolve their disagreement about the other topics, and the City did not provide any testimony on April 3, 2023. Id. at 2, 4. The parties delayed until after the close of fact discovery before bringing the matter to the Court’s attention. They now dispute whether the City should be required to prepare a representative to testify regarding Topics 1, 4-6, and 10-12. The City says it will provide testimony on the remaining topics. Id. at 1. Rule 30(b)(6) of the Federal Rules of Civil Procedure requires the party seeking the deposition of a government entity to describe “with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). The designating party must make a good faith effort to prepare its designees so that they can answer questions fully, completely, and without evasion. In re JDS Uniphase Corp. Sec. Litig., Case No. 02-cv-1486 CW (EDL), 2007 WL 219857, at *1 (N.D. Cal. Jan. 29, 2007). If the designee cannot testify fully and completely on behalf of the entity as to a particular topic based on his or her own personal knowledge, the entity has a duty to prepare the designee using other sources of information reasonably available to it. Id. (“The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources.”). As with all discovery, a Rule 30(b)(6) deposition must be directed to non-privileged matter that is relevant to a claim or defense and that is proportional to the needs of case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). A. Topic 1 Topic 1 asks the City to provide testimony about “[t]he compilation, drafting, and preparation of the report identified as GO# SJ 2020-201510267, . . . and the ‘Police Department Preliminary After Action Report for the Public Protests, Civil Unrest and Law Enforcement Response from May 29th – June 7th, 2020.’” Dkt. No. 96, Ex. A. However, Mr. Johnson appears to have narrowed this topic for purposes of this dispute, limiting it to “the After Action Report,” prepared by City employees after the George Floyd protests in San Jose. See Dkt. No. 96 at 2. In addition, Mr. Johnson explains that he wishes to depose a representative “who can speak on behalf of the City not necessarily as to the contents of the report but as to [the] process in which the report was prepared, including the drafting, revisions, and approval of the report.” Id. (emphasis added). He says that this information is relevant to his claim that the City’s response to the protests was substantially motivated by the protestors’ First Amendment activity. Id. The City objects to Topic 1 on two grounds. First, it argues that the topic is not described with reasonable particularity and that preparing a witness to testify about either report (each of which is hundreds of pages long) would be unduly burdensome. Id. at 5. Second, it argues that “to the extent [this topic] covers discussions about policy during the drafting of the After Action Report, the communications are protected under the deliberative process privilege.” Id. As presently framed by Mr. Johnson, Topic 1 seeks testimony only about the process of preparing the After Action Report. Mr. Johnson does not seek any testimony about the general offense report (GO# SJ 2020-201510267), and he does not seek testimony about the contents of the After Action Report. Thus, this topic would require the City to prepare a witness to testify only about the process of “compilation, drafting, and preparation” of that report—not its content. So limited, Topic 1 would not impose an undue burden on the City, nor is it likely to require the City’s representative to discuss any matters within the scope of the deliberative process privilege.1 B. Topic 4 Topic 4 asks the City to provide testimony about “[t]raining provided to sworn members of the SJPD on the CITY’s use of force policy or practice in effect on May 29, 2020, and May 30, 2020, including but not limited to the use of force on individuals engaged in EXPRESSIVE ACTIVITIES.”2 Id., Ex. A. Mr. Johnson says that the City’s training of police officers in the use of force policy in effect at the time of the protests, particularly in the context of expressive activities, is relevant to his Monell claims against the City. Dkt. No. 96 at 3. The City objects to Topic 4 on the ground that the topic goes beyond training on the types of force or other conduct that allegedly caused his injury—i.e., crowd control training and projectile impact weapons training—which are already covered by other deposition topics. Id. at 5 (citing Topics 2, 3, 8, and 9). The Court has reviewed the second amended complaint and Judge Freeman’s order denying the City’s motion to dismiss Mr. Johnson’s Monell claims. Dkt. Nos. 73, 85. As the order notes, Mr. Johnson’s failure to train claim is not limited to training on the use of projectile impact weapons or crowd control tactics, but extends to the use of less lethal weapons generally and how the SJPD handles protests like the George Floyd protests. See Dkt. No. 85 at 13-15. Moreover, evidence regarding the nature, content, and frequency of training (or lack thereof) in use of force more generally may support Mr. Johnson’s claim that the City has an unconstitutional custom and practice of using excessive force (of any type) against people protesting racist violence by police officers. See id. at 11-13. Thus, Topic 4 seeks testimony that is relevant and proportional to the needs of the case. C. Topics 5 and 6 Topics 5 and 6 ask the City to provide testimony about five specific documents, all of which relate to training on the use of force. Id., Ex. A. Mr. Johnson argues that these topics are relevant to his Monell claims in the sam
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KYLE JOHNSON, Case No. 21-cv-01849-BLF (VKD)
Plaintiff, ORDER RE APRIL 17, 2023 v. DISCOVERY DISPUTE RE RULE 30(B)(6) DEPOSITION CITY OF SAN JOSE, et al., Re: Dkt. No. 96 Defendants.
The parties ask the Court to resolve their dispute concerning Topics 1, 4-6, and 10-12 in plaintiff Kyle Johnson’s Rule 30(b)(6) notice of deposition to defendant City of San Jose (“City”). Dkt. No. 96. The Court finds this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b). For the reasons explained below, the Court orders the City to provide testimony responsive to Topics 1 (as narrowed), 4-6, 10, and 11. Mr. Johnson alleges that he was injured when SJPD Officer James Adgar fired a projectile at him during the George Floyd protests in San Jose, California in late May 2020. Dkt. No. 73. On March 16, 2021, he filed this action against the City and Officer Adgar asserting claims for battery and negligence, violations of his First and Fourth Amendments rights, and violation of the Bane Act. Id. ¶¶ 68-98. On December 7, 2021, Mr. Johnson served a Rule 30(b)(6) deposition notice on the City, but he chose not to proceed with the deposition as noticed. See Dkt. No. 96 at 1. Fifteen months City, with a deposition date of April 3, 2023—one week before the close of fact discovery. Id. at 2, 4. The City objected. Id. On March 24, 2023, Mr. Johnson served a further amended Rule 30(b)(6) deposition notice on the City with the same deposition date. Id., Ex. A. The City again objected on several grounds, but agreed to produce a representative to testify as to some of the topics in the notice. Id. at 1, 2, 4. The parties could not resolve their disagreement about the other topics, and the City did not provide any testimony on April 3, 2023. Id. at 2, 4. The parties delayed until after the close of fact discovery before bringing the matter to the Court’s attention. They now dispute whether the City should be required to prepare a representative to testify regarding Topics 1, 4-6, and 10-12. The City says it will provide testimony on the remaining topics. Id. at 1. Rule 30(b)(6) of the Federal Rules of Civil Procedure requires the party seeking the deposition of a government entity to describe “with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). The designating party must make a good faith effort to prepare its designees so that they can answer questions fully, completely, and without evasion. In re JDS Uniphase Corp. Sec. Litig., Case No. 02-cv-1486 CW (EDL), 2007 WL 219857, at *1 (N.D. Cal. Jan. 29, 2007). If the designee cannot testify fully and completely on behalf of the entity as to a particular topic based on his or her own personal knowledge, the entity has a duty to prepare the designee using other sources of information reasonably available to it. Id. (“The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources.”). As with all discovery, a Rule 30(b)(6) deposition must be directed to non-privileged matter that is relevant to a claim or defense and that is proportional to the needs of case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). A. Topic 1 Topic 1 asks the City to provide testimony about “[t]he compilation, drafting, and preparation of the report identified as GO# SJ 2020-201510267, . . . and the ‘Police Department Preliminary After Action Report for the Public Protests, Civil Unrest and Law Enforcement Response from May 29th – June 7th, 2020.’” Dkt. No. 96, Ex. A. However, Mr. Johnson appears to have narrowed this topic for purposes of this dispute, limiting it to “the After Action Report,” prepared by City employees after the George Floyd protests in San Jose. See Dkt. No. 96 at 2. In addition, Mr. Johnson explains that he wishes to depose a representative “who can speak on behalf of the City not necessarily as to the contents of the report but as to [the] process in which the report was prepared, including the drafting, revisions, and approval of the report.” Id. (emphasis added). He says that this information is relevant to his claim that the City’s response to the protests was substantially motivated by the protestors’ First Amendment activity. Id. The City objects to Topic 1 on two grounds. First, it argues that the topic is not described with reasonable particularity and that preparing a witness to testify about either report (each of which is hundreds of pages long) would be unduly burdensome. Id. at 5. Second, it argues that “to the extent [this topic] covers discussions about policy during the drafting of the After Action Report, the communications are protected under the deliberative process privilege.” Id. As presently framed by Mr. Johnson, Topic 1 seeks testimony only about the process of preparing the After Action Report. Mr. Johnson does not seek any testimony about the general offense report (GO# SJ 2020-201510267), and he does not seek testimony about the contents of the After Action Report. Thus, this topic would require the City to prepare a witness to testify only about the process of “compilation, drafting, and preparation” of that report—not its content. So limited, Topic 1 would not impose an undue burden on the City, nor is it likely to require the City’s representative to discuss any matters within the scope of the deliberative process privilege.1 B. Topic 4 Topic 4 asks the City to provide testimony about “[t]raining provided to sworn members of the SJPD on the CITY’s use of force policy or practice in effect on May 29, 2020, and May 30, 2020, including but not limited to the use of force on individuals engaged in EXPRESSIVE ACTIVITIES.”2 Id., Ex. A. Mr. Johnson says that the City’s training of police officers in the use of force policy in effect at the time of the protests, particularly in the context of expressive activities, is relevant to his Monell claims against the City. Dkt. No. 96 at 3. The City objects to Topic 4 on the ground that the topic goes beyond training on the types of force or other conduct that allegedly caused his injury—i.e., crowd control training and projectile impact weapons training—which are already covered by other deposition topics. Id. at 5 (citing Topics 2, 3, 8, and 9). The Court has reviewed the second amended complaint and Judge Freeman’s order denying the City’s motion to dismiss Mr. Johnson’s Monell claims. Dkt. Nos. 73, 85. As the order notes, Mr. Johnson’s failure to train claim is not limited to training on the use of projectile impact weapons or crowd control tactics, but extends to the use of less lethal weapons generally and how the SJPD handles protests like the George Floyd protests. See Dkt. No. 85 at 13-15. Moreover, evidence regarding the nature, content, and frequency of training (or lack thereof) in use of force more generally may support Mr. Johnson’s claim that the City has an unconstitutional custom and practice of using excessive force (of any type) against people protesting racist violence by police officers. See id. at 11-13. Thus, Topic 4 seeks testimony that is relevant and proportional to the needs of the case. C. Topics 5 and 6 Topics 5 and 6 ask the City to provide testimony about five specific documents, all of which relate to training on the use of force. Id., Ex. A. Mr. Johnson argues that these topics are relevant to his Monell claims in the same way that Topic 4 is relevant. Dkt. No. 96 at 3-4. The City objects to these topics to the extent these documents concern policies that were not in effect at the time of the protests, and to the extent those policies cover uses of force other than the use of projectile impact weapons. Id. at 6.
2 “Expressive Activities” means “expressive activities involving speech or assembly, such as The City’s first objection is not well-taken. As described in the second amended complaint, the SJPD’s policy on the use of force, including the use of projectile impact weapons, changed in the years leading up to the protests, expanding the circumstances in which force could be used. See Dkt. No. 73 ¶ 38(a) (describing October 2018 change to SJPD policy). Evidence about earlier and later versions of the use of force policy may bear on Mr. Johnson’s claim that the City was aware of and endorsed an unconstitutional policy or practice and that the policy was well settled and longstanding. See Dkt. No. 85 at 11. The Court has already considered and rejected the City’s second objection in discussing Topic 4, above. Thus, Topics 5 and 6 are relevant and proportional to the needs of the case. D. Topics 10 and 11 Topics 10 and 11 ask the City to provide testimony about any investigations conducted regarding SJPD officers’ conduct during the protests, and any disciplinary actions taken against SJPD officers as a result of such conduct, including disciplinary action against Officer Yuen. Dkt. No. 96, Ex. A. Mr. Johnson says that the City received dozens of complaints about officers’ conduct on the first day of the protests, and that its failure to investigate these complaints or take disciplinary action against the officers involved is evidence of an unconstitutional custom or policy and the City’s deliberate indifference. Id. at 3. The City objects that these topics are too broad, and that it would be unduly burdensome for the City to prepare a representative to testify about all such investigations or actions. Id. at 6. It is not clear from the parties’ submission how many investigations or disciplinary actions are within the scope of Topics 10 and 11, so the Court cannot assess the City’s claim that these topics present an undue burden. However, the subject matter appears to be relevant to Mr. Johnson’s Monell claims. See Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011) (“We have long recognized that a custom or practice can be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded.”) (internal quotations omitted). Thus, on the record presented, the Court finds that Topics 10 and 11 are relevant and proportional to the needs of the case. E. Topic 12 Topic 12 asks the City to provide testimony about “[t]he review by any supervisor of the use of force reports compiled during the protests.” Dkt. No. 96, Ex. A. Mr. Johnson argues that ° evidence showing that police officer’s use of force reports regarding force used during the protests were not reviewed by a supervisor would support his claim that the City was deliberately ° indifferent regarding whether its officers were properly trained in the use of force and whether ° they were complying with SJPD policy. /d. at 3. The City objects that preparing testimony ’ addressing this topic is unduly burdensome because it would require the City to gather information ° about 10 days’ worth of reports written by hundreds of officers and reviewed by dozens of ° sergeants. Id. at 6. Mr. Johnson does not respond to the City’s argument on this point. Topic 12 is broader than Topics 10 and 11. The Court agrees with the City that preparing a " representative to testify about the full scope of Topic 12 would be unduly burdensome, and that the potential benefits of the proposed discovery are not proportional to the needs of the case.
S 4 IV. CONCLUSION = The City must provide testimony regarding Topics | (as narrowed), 4-6, 10, and 11, in Z 6 addition to the topics on which the parties previously agreed. The deposition will be limited to no more than 7 hours total, regardless of how many representatives testify on the City’s behalf. The = " parties must confer promptly to schedule a date for this deposition that affords the City adequate 18 time to prepare its representative(s). Once they have selected a date for the deposition, the parties shall file a stipulated request and proposed order directed to Judge Freeman seeking a modification * to the case schedule to accommodate this deposition after the close of fact discovery. IT IS SO ORDERED. * Dated: May 25, 2023 23 24 «ee
6 United States Magistrate Judge 27 28