8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 LONDON WALLACE, Case No. 1:19-cv-01199-AWI-SAB
12 Plaintiff, ORDER RE JOINT STATEMENT OF DISCOVERY DISAGREEMENT 13 v. (ECF Nos. 47, 50, 51) 14 CITY OF FRESNO, et al., FOURTEEN DAY DEADLINE 15 Defendants.
16 17 London Wallace (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983 on 18 August 30, 2019. Currently before the Court is the parties joint statement re discovery 19 disagreement, filed on March 3, 2021. (ECF No. 47.) 20 I. 21 BACKGROUND 22 Around January 23, 2019, a probation search was performed at 250 N. Calaveras Street, 23 Apartment 204, in Fresno, California. (Compl., ¶ 7, ECF No. 1-2.) Everyone inside the 24 apartment, including Plaintiff, was ordered outside, searched, and detained. (Id., ¶¶ 8, 9.) 25 Plaintiff was ordered to sit along the apartment wall, but before he could sit down, Defendant 26 Martinez attacked, punched, and tackled Plaintiff. (Id., ¶ 12.) 27 On July 30, 2019, Plaintiff filed an action in the Fresno County Superior Court against the City of Fresno, Fresno Police Department, and Christopher Martinez alleging excessive force 1 in violation of the Fourth and Fourteenth Amendments, municipal liability, and state court causes 2 of action. (ECF No. 1-2.) On August 30, 2019, the named defendants removed this action to the 3 Eastern District of California. (ECF No. 1.) 4 On October 4, 2019, Plaintiff filed a first amended complaint adding Officer Ricardo 5 Loza as a defendant. (ECF No. 11.) On October 16, 2019, a motion to dismiss was filed. (ECF 6 No. 17.) At the stipulation of the parties, the second and seventh causes of action were dismissed 7 from the complaint on October 18, 2019. (ECF Nos. 18, 19.) On November 20, 2019, 8 Defendants’ motion to dismiss the third cause of action was granted and Plaintiff was ordered to 9 file a amended complaint within twenty one days. (ECF No. 26.) 10 On December 9, 2019, Plaintiff filed a second amended complaint. (ECF No. 27.) An 11 answer to the complaint was filed on December 23, 2019. (ECF No. 29.) The mandatory 12 scheduling conference was held on February 11, 2020, and a scheduling order issued. (ECF Nos. 13 32, 33.) 14 On May 21, 2020, Defendants served a request for production of documents, set one. 15 (ECF No. 47-2.) On June 9, 2020, Plaintiff served responses to request for production of 16 documents, set one. (ECF No. 47-3.) 17 Plaintiff filed a motion for leave to file a third amended complaint that was granted on 18 June 23, 2020, and a third amended complaint was filed that same day adding Officer Michael 19 Aguilar and Patrick Feller as defendants. (ECF Nos. 39, 40.) Defendants City of Fresno, Fresno 20 Police Department, Martinez, Loza, Aguilar, and Feller filed an answer to the third amended 21 complaint on June 25, 2020. (ECF No. 41.) 22 On September 25, 2020, Defendants served a second amended notice of deposition of 23 Plaintiff London Wallace with a request for production of documents. (ECF No. 47-7.) On 24 November 16, 2020, a deposition was conducted of Plaintiff at which he stated that two days 25 following the incident he was provided with a video recording of the incident by his neighbor 26 and had provided the recording to his attorney. (Depo. of Plaintiff, 82:14-83:9, ECF No. 47-8.) 27 On January 7, 2021, at the stipulation of the parties, the scheduling order was amended. 1 On February 17, 2021, a deposition was conducted of Plaintiff’s neighbor, Andre 2 Bouieadams who testified that he had three videos of the incident and the he provided two of the 3 videos to Plaintiff. (Depo. of Andre Bouieadams, 27:1-27, 76:24-78:16, ECF No. 47-9 at 3.) 4 Mr. Bouieadams testified that the videos are still on the cloud and he was pretty sure that he 5 could find them. (Id. at 27:11-13, 45:7-10, 112:20-113:6.) On March 3, 2021, the instant joint 6 statement of discovery disagreement was filed. (ECF No. 47.) On March 4, 2021, an order 7 issued requiring Defendant to supplement the motion to compel. (ECF No. 49.) On March 5, 8 2021, counsel Kevin Louth and Lynn Carpenter filed declarations in support of the request for 9 attorney fees. (ECF Nos. 50, 51.) 10 On March 9, 2021, an order issued vacating the hearing on the joint statement of 11 discovery disagreement and the matter was taken under submission. (ECF No. 52.) 12 II. 13 LEGAL STANDARD 14 Rule 26 of the Federal Rules of Civil Procedure allows a party to obtain discovery 15 “regarding any nonprivileged matter that is relevant to any party’s claim or defense and 16 proportional to the needs of the case, considering the importance of the issues at stake in the 17 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 18 resources, the importance of the discovery in resolving the issues, and whether the burden or 19 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 20 “Information within this scope of discovery need not be admissible in evidence to be 21 discoverable.” Fed. R. Civ. P. 26(b)(1). “Evidence is relevant if: (a) it has any tendency to make 22 a fact more or less probable than it would be without the evidence; and (b) the fact is of 23 consequence in determining the action.” Fed. R. Evid. 401. 24 Rule 37 of the Federal Rules of Civil Procedure provides that a party may move for an 25 order compelling disclosure or discovery. Fed. R. Civ. P. 37(a)(1). “A party seeking discovery 26 may move for an order compelling an answer, designation, production, or inspection” where “(i) 27 a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity 1 interrogatory submitted under Rule 33; or (iv) a party fails to produce documents or fails to 2 respond that inspection will be permitted -- or fails to permit inspection -- as requested under 3 Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). The party opposing the discovery bears the burden of 4 resisting disclosure. Bryant v. Armstrong, 285 F.R.D. 596, 600 (S.D. Cal. 2012). 5 If the motion is granted or the disclosure or requested discovery is provided after the 6 filing of the motion, the court must order the offending party “to pay the movant’s reasonable 7 expenses incurred in making the motion, including attorney’s fees” unless “(i) the movant filed 8 the motion before attempting in good faith to obtain the disclosure or discovery without court 9 action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; 10 or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). 11 III. 12 DISCUSSION 13 A. Argument of the Parties 14 Defendants contend that Plaintiff’s responses to request for production, set one, no 17 15 and 18 and request for production no.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 LONDON WALLACE, Case No. 1:19-cv-01199-AWI-SAB
12 Plaintiff, ORDER RE JOINT STATEMENT OF DISCOVERY DISAGREEMENT 13 v. (ECF Nos. 47, 50, 51) 14 CITY OF FRESNO, et al., FOURTEEN DAY DEADLINE 15 Defendants.
16 17 London Wallace (“Plaintiff”) filed this civil rights action pursuant to 42 U.S.C. § 1983 on 18 August 30, 2019. Currently before the Court is the parties joint statement re discovery 19 disagreement, filed on March 3, 2021. (ECF No. 47.) 20 I. 21 BACKGROUND 22 Around January 23, 2019, a probation search was performed at 250 N. Calaveras Street, 23 Apartment 204, in Fresno, California. (Compl., ¶ 7, ECF No. 1-2.) Everyone inside the 24 apartment, including Plaintiff, was ordered outside, searched, and detained. (Id., ¶¶ 8, 9.) 25 Plaintiff was ordered to sit along the apartment wall, but before he could sit down, Defendant 26 Martinez attacked, punched, and tackled Plaintiff. (Id., ¶ 12.) 27 On July 30, 2019, Plaintiff filed an action in the Fresno County Superior Court against the City of Fresno, Fresno Police Department, and Christopher Martinez alleging excessive force 1 in violation of the Fourth and Fourteenth Amendments, municipal liability, and state court causes 2 of action. (ECF No. 1-2.) On August 30, 2019, the named defendants removed this action to the 3 Eastern District of California. (ECF No. 1.) 4 On October 4, 2019, Plaintiff filed a first amended complaint adding Officer Ricardo 5 Loza as a defendant. (ECF No. 11.) On October 16, 2019, a motion to dismiss was filed. (ECF 6 No. 17.) At the stipulation of the parties, the second and seventh causes of action were dismissed 7 from the complaint on October 18, 2019. (ECF Nos. 18, 19.) On November 20, 2019, 8 Defendants’ motion to dismiss the third cause of action was granted and Plaintiff was ordered to 9 file a amended complaint within twenty one days. (ECF No. 26.) 10 On December 9, 2019, Plaintiff filed a second amended complaint. (ECF No. 27.) An 11 answer to the complaint was filed on December 23, 2019. (ECF No. 29.) The mandatory 12 scheduling conference was held on February 11, 2020, and a scheduling order issued. (ECF Nos. 13 32, 33.) 14 On May 21, 2020, Defendants served a request for production of documents, set one. 15 (ECF No. 47-2.) On June 9, 2020, Plaintiff served responses to request for production of 16 documents, set one. (ECF No. 47-3.) 17 Plaintiff filed a motion for leave to file a third amended complaint that was granted on 18 June 23, 2020, and a third amended complaint was filed that same day adding Officer Michael 19 Aguilar and Patrick Feller as defendants. (ECF Nos. 39, 40.) Defendants City of Fresno, Fresno 20 Police Department, Martinez, Loza, Aguilar, and Feller filed an answer to the third amended 21 complaint on June 25, 2020. (ECF No. 41.) 22 On September 25, 2020, Defendants served a second amended notice of deposition of 23 Plaintiff London Wallace with a request for production of documents. (ECF No. 47-7.) On 24 November 16, 2020, a deposition was conducted of Plaintiff at which he stated that two days 25 following the incident he was provided with a video recording of the incident by his neighbor 26 and had provided the recording to his attorney. (Depo. of Plaintiff, 82:14-83:9, ECF No. 47-8.) 27 On January 7, 2021, at the stipulation of the parties, the scheduling order was amended. 1 On February 17, 2021, a deposition was conducted of Plaintiff’s neighbor, Andre 2 Bouieadams who testified that he had three videos of the incident and the he provided two of the 3 videos to Plaintiff. (Depo. of Andre Bouieadams, 27:1-27, 76:24-78:16, ECF No. 47-9 at 3.) 4 Mr. Bouieadams testified that the videos are still on the cloud and he was pretty sure that he 5 could find them. (Id. at 27:11-13, 45:7-10, 112:20-113:6.) On March 3, 2021, the instant joint 6 statement of discovery disagreement was filed. (ECF No. 47.) On March 4, 2021, an order 7 issued requiring Defendant to supplement the motion to compel. (ECF No. 49.) On March 5, 8 2021, counsel Kevin Louth and Lynn Carpenter filed declarations in support of the request for 9 attorney fees. (ECF Nos. 50, 51.) 10 On March 9, 2021, an order issued vacating the hearing on the joint statement of 11 discovery disagreement and the matter was taken under submission. (ECF No. 52.) 12 II. 13 LEGAL STANDARD 14 Rule 26 of the Federal Rules of Civil Procedure allows a party to obtain discovery 15 “regarding any nonprivileged matter that is relevant to any party’s claim or defense and 16 proportional to the needs of the case, considering the importance of the issues at stake in the 17 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 18 resources, the importance of the discovery in resolving the issues, and whether the burden or 19 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 20 “Information within this scope of discovery need not be admissible in evidence to be 21 discoverable.” Fed. R. Civ. P. 26(b)(1). “Evidence is relevant if: (a) it has any tendency to make 22 a fact more or less probable than it would be without the evidence; and (b) the fact is of 23 consequence in determining the action.” Fed. R. Evid. 401. 24 Rule 37 of the Federal Rules of Civil Procedure provides that a party may move for an 25 order compelling disclosure or discovery. Fed. R. Civ. P. 37(a)(1). “A party seeking discovery 26 may move for an order compelling an answer, designation, production, or inspection” where “(i) 27 a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity 1 interrogatory submitted under Rule 33; or (iv) a party fails to produce documents or fails to 2 respond that inspection will be permitted -- or fails to permit inspection -- as requested under 3 Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). The party opposing the discovery bears the burden of 4 resisting disclosure. Bryant v. Armstrong, 285 F.R.D. 596, 600 (S.D. Cal. 2012). 5 If the motion is granted or the disclosure or requested discovery is provided after the 6 filing of the motion, the court must order the offending party “to pay the movant’s reasonable 7 expenses incurred in making the motion, including attorney’s fees” unless “(i) the movant filed 8 the motion before attempting in good faith to obtain the disclosure or discovery without court 9 action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; 10 or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). 11 III. 12 DISCUSSION 13 A. Argument of the Parties 14 Defendants contend that Plaintiff’s responses to request for production, set one, no 17 15 and 18 and request for production no. 6 in the second amended notice of Plaintiff’s deposition 16 were deficient under the discovery rules. Defendants assert that Plaintiff testified at his 17 deposition that he had videos of the incident alleged in the complaint in his possession but has 18 never produced them nor provided a detailed explanation as to what he claims happened to the 19 recordings, and has not indicated that he searched the cloud for his own copies of the recordings. 20 Defendants seek to order Plaintiff to produce the cell phone recordings. Defendants rely 21 on Plaintiff’s deposition testimony that he received the recordings from his neighbor and still has 22 them in his possession and the neighbor’s deposition testimony that he provided two videos to 23 Plaintiff approximately a month after the incident at Plaintiff’s request. Defendants seek to have 24 Plaintiff supplement his response to request for production nos. 17 and 18, set one, and request 25 for production no. 6 of the second amended notice of deposition of London Wallace and to 26 require him to produce the cell phone recordings. Defendants also seek an order for Plaintiff and 27 his attorney to pay Defendants’ reasonable attorney fees incurred in bringing this motion. 1 the cell phone recordings. Plaintiff argues that he has made every effort to obtain Mr. 2 Bouieadams’ cell phone video recordings. Plaintiff contends that he has searched his 3 possessions and is unable to locate any cell phone video recordings of the incident. Plaintiff 4 states that he contacted his defense attorney who recalled seeing the video on Plaintiff’s 5 grandmother’s cell phone. Plaintiff also states that he contacted his grandmother who stated she 6 is unable to locate the cell phone recording. Plaintiff states that he never backed up his cell 7 phone to the cloud and therefore he is unable to locate, retrieve or produce the cell phone 8 recording. Plaintiff states that he will not make any argument at trial that any of the videos of the 9 incident were doctored. Further, Plaintiff argues that the entirety of the subject incident was 10 captured on the officers’ body cameras. Plaintiff contends that his defense counsel viewed the 11 video and found that it did not contain anything of significant value for either party. 12 B. Plaintiff Shall be Required to Supplement his Discovery Responses 13 Defendants served a requests for production of documents on May 21, 2020. Request for 14 production no. 17 seeks
15 Any and all Documents or Evidence (in any medium – including but not limited to any photographs, audio recordings, video recordings, digital recordings, and 16 electronic discovery in any storage medium) that You contend depict any part of the Incident interaction between any employee of the CITY OF FRESNO and 17 You and/or that You contend depict(s) any pertinent facts supporting any of Your claims in this action. 18 (ECF No. 47-2 at 18.) 19 Defendants’ request for production no. 18 seeks 20 Any and all Documents or tangible Evidence, in any medium recorded (including 21 any photographs, audio recordings, video recordings, diagrams, or other visual or comparable electronic or hardcopy records) made or obtained by You in any way 22 related to the Incident and/or the location(s) where the Incident occurred – including but not limited to any and all Witness statements taken by You (where 23 You anticipate or estimate or have any reason to suspect that such Witness’ testimony may be offered at the time of trial) – but excluding privileged matters 24 and attorney-client communications. 25 (Id. at 18-19.) 26 Plaintiff’s response to request for production no. 17 and 18 both state,
27 Objection is made to this interrogatory on the grounds that it seeks to have Plaintiff render legal and/or expert opinions that Plaintiff is not qualified to make, 1 include information protected by Rule 26 of the Federal Rules of Civil Procedure regarding experts and other confidential information protected by the 2 attorney/client privilege and work product limitation on discovery, is vague, ambiguous and overly broad, calls for speculation, and seeks, directly or 3 indirectly, protected information concerning the investigation launched by Plaintiff and Plaintiff’s counsel, including without limitation their mental 4 thoughts, strategies and processes. Subject to and without waiver of the foregoing general or specific objections, Plaintiff responds as follows: 5 After a diligent search and reasonable inquiry, attached hereto as Exhibit “A” are 6 documents responsive to this request that are in my possession at this time. 7 (ECF No. 47-3 at 12-13.) 8 The second amended notice of deposition, request for production no. 6, seeks “Any cell 9 phone recordings and/or recordings in any other medium related to the subject incident that is at 10 issue in this lawsuit.” (ECF No. 47-4 at 5.) Plaintiff did not produce the video of the incident at 11 his deposition nor did he object to the request for production. 12 “Under ordinary circumstances, a party’s good faith averment that the items sought 13 simply do not exist, or are not in his possession, custody, or control, should resolve the issue of 14 failure of production since one ‘cannot be required to produce the impossible.’ ” Berger v. 15 Home Depot USA, Inc., No. SACV10678SJOPLAX, 2010 WL 11558000, at *7 (C.D. Cal. Oct. 16 7, 2010) (quoting Zervos v. S. S. Sam Houston, 79 F.R.D. 593, 595 (S.D.N.Y. 1978) and 17 LaChemise Lacoste v. Alligator Co., 60 F.R.D. 164, 172 (D. Del. 1973)). The “court cannot 18 compel a party to produce documents that do not exist and a mere suspicion that additional 19 documents exist is an insufficient basis to grant a motion to compel. K.C.R. v. Cty. of Los 20 Angeles, No. CV 13-3806 PSG (SSX), 2014 WL 12725470, at *8 (C.D. Cal. Aug. 6, 2014). To 21 succeed on the motion, “the moving party must have a colorable basis for its belief that relevant, 22 responsive documents exist and are being improperly withheld.” K.C.R., 2014 WL 12725470, at 23 *8. Here, Defendants have provided specific evidence that the cell phone videos exist and that 24 they were in Plaintiff’s possession and control after the incident. In fact, Plaintiff’s counsel 25 asserts that Plaintiff showed the video to his defense counsel in his criminal case. 26 “A party is deemed to have control over documents if he or she has a legal right to obtain 27 them.” Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012). Further, “[a] party responding to a document request ‘cannot furnish only that information within his immediate 1 knowledge or possession; he is under an affirmative duty to seek that information reasonably 2 available to him from his employees, agents, or others subject to his control.’ ” Rogers, 288 3 F.R.D. at 485; see also Hill v. Eddie Bauer, 242 F.R.D. 556, 560 (C.D. Cal. 2007). 4 Based on the testimony of Mr. Bouieadams, Plaintiff requested and received the videos of 5 the incident shortly after it occurred for the purposes of filing a lawsuit. However, Mr. 6 Bouieadams also testified that he was not sure whether he provided the videos to Plaintiff or to 7 his brother. Mr. Bouieadams testified several times that he still has access to the cloud and 8 would be able to obtain the videos from the cloud. Further, as Defendants argue, Plaintiff 9 testified at his deposition that he had these videos in his possession but has never produced them 10 nor has he supplemented his discovery responses to provide a detailed explanation as to what he 11 claims happened to the recordings. 12 Here, it is undisputed that Plaintiff had in his possession the two video recordings of the 13 incident. Further, while Plaintiff seeks to downplay the importance of the videos, it appears that 14 Mr. Bouieadams recorded the entire incident from the doorway of his apartment. Mr. 15 Bouieadams testified that he was holding the camera in front of himself at eye level and the 16 officer told him to close the door. (Bouieadams Depo. 45:15-24.) The first recording that he 17 took was about 20 seconds and was on a phone that was going dead. (Id. at 27:1-3.) This video 18 only depicted the officers outside the door and did not have any of the contact with Plaintiff. (Id. 19 at 78:1-9.) There is also a video that was approximately 12 to 13 minutes in length and a third 20 video that was two minutes in length. (Id. at 77:2-25.) Plaintiff requested the video and Mr. 21 Bouieadams gave these two videos to Plaintiff or his brother approximately a month after the 22 incident. (Id. at 76:21-77:14, 78:10-16.) Law enforcement asked for the video, but Mr. 23 Bouieadams refused to turn them over without a warrant. (Id. at 27:17-25.) The videos were in 24 Plaintiff’s possession and are clearly relevant in this action and responsive to the requests for 25 production. Fed. R. Civ. P. 26(b)(1). 26 Plaintiff argues that the videos do not show anything different from the body camera 27 footage, however, even if this is true it would not establish that Plaintiff’s conduct in failing to 1 947 (9th Cir. 1993). Plaintiff has admitted that he was in possession of the video at the time that 2 he was contemplating filing this lawsuit and he was required to preserve the video of the 3 incident. “A party must preserve evidence it knows or should know is relevant to a claim or 4 defense of any party, or that may lead to the discovery of relevant evidence.” Compass Bank v. 5 Morris Cerullo World Evangelism, 104 F.Supp.3d 1040, 1051 (S.D. Cal. 2015); see also In re 6 Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1067 (N.D. Cal. 2006) (“As soon as a 7 potential claim is identified, a litigant is under a duty to preserve evidence which it knows or 8 reasonably should know is relevant to the action.”). 9 In responding to discovery requests, “a party has an obligation to conduct a reasonable 10 inquiry into the factual basis of his responses” and “[b]ased on that inquiry, a party responding to 11 a request for production ‘is under an affirmative duty to seek that information reasonably 12 available’ to it and make an appropriate production of responsive documents.’ ” Hawkins v. 13 Kroger Co., No. 15-CV-2320-JM(BLM), 2019 WL 4416132, at *8 (S.D. Cal. Sept. 16, 2019) 14 (quoting Hartline v. Nat’l Univ., 2018 WL 1014611, at *3 (E.D. Cal. Feb. 22, 2018)). The party 15 must “conduct a diligent search and reasonable inquiry in effort to obtain responsive 16 documents.” Hawkins, 2019 WL 4416132, at *8 (collecting cases). In responding to document 17 requests a party “must make a reasonable inquiry to determine whether responsive documents 18 exist, and if they do not, the ‘party should so state with sufficient specificity to allow the Court to 19 determine whether the party made a reasonable inquiry and exercised due diligence.’ ” Rogers, 20 288 F.R.D. at 485 (citations omitted); Coppola v. Smith, No. 1:11-CV-1257-AWI-BAM, 2016 21 WL 726903, at *2 (E.D. Cal. Feb. 23, 2016); see also Hawkins, 2019 WL 4416132, at *8 (“If a 22 party cannot furnish details, he should say so under oath, and say why and set forth the efforts 23 used to obtain the information and cannot plead ignorance to information that is from sources 24 within his control.”). “Information regarding the search conducted should be provided through 25 declarations under oath detailing the nature of the efforts to locate responsive documents.” 26 EnvTech, Inc. v. Suchard, No. 3:11-CV-00523-HDM, 2013 WL 4899085, at *5 (D. Nev. Sept. 27 11, 2013). 1 incident in his possession and control, and there is evidence that the videos may also be in the 2 possession of Plaintiff’s grandmother and his brother, and his criminal attorney has at least seen 3 if he did not keep a copy of the video. “Pursuant to Rule 37(a), a party propounding discovery or 4 taking a deposition may seek an order compelling responses when an opposing party has failed 5 to respond or has provided evasive or incomplete responses.” Jackson v. Farmers Ins. Exch., No. 6 2:14-CV-00250-WBS-AC, 2014 WL 7150264, at *5 (E.D. Cal. Dec. 15, 2014) (quoting Fed. R. 7 Civ. P. 37(a)(3)(B)). The videos were in Plaintiff’s possession prior to the request for production 8 of documents, set one, being propounded and Plaintiff did not produce the videos in response to 9 any of the requests for production of documents. Plaintiff’s response that “[a]fter a diligent 10 search and reasonable inquiry,” the documents listed in Exhibit A are the only documents 11 responsive to this request that are in my possession at this time is clearly insufficient for the 12 Court to determine that Plaintiff conducted a reasonable search in a good faith attempt to locate 13 the videos. To comply with the discovery rules, Plaintiff must confirm that he conducted a 14 thorough search with due diligence; and he must briefly describe the search such that the Court 15 can determine whether it was reasonable. Coppola, 2016 WL 726903, at *3. 16 Accordingly, in responding to the request, Plaintiff must do more than say he searched 17 and no responsive documents were found, “[]he must briefly describe the search to allow the 18 Court to determine whether it was reasonable.” Rogers, 288 F.R.D. at 485. Plaintiff shall be 19 required to further supplement his response to the first request for production of documents, nos. 20 17 and 18, and request for production of documents no. 6 in the second amended notice of 21 deposition. In supplementing his responses, Plaintiff must identify the specific attempts that he 22 made to obtain the videos, including his efforts as to the family members who potentially had the 23 videos, so that the Court can ascertain that he conducted a reasonable search in a good faith 24 attempt to produce the videos. See Jackson, 2014 WL 7150264, at *6 (“if no responsive 25 documents or tangible things exist, the responding party must describe its search with sufficient 26 specificity to allow the court to determine whether the party made a reasonable inquiry and 27 exercised due diligence”); Luma Pictures Inc. v. Betuel, No. CV 16-2625-GW (PLAX), 2016 1 declaration, signed under penalty of perjury, detailing the procedures and efforts he made to 2 locate responsive documents and the results of that search, and declaring that after this search he 3 has now produced all documents responsive to these requests.”). 4 Defendants motion to compel a further response to request for production of documents, 5 set one nos. 17 and 18 and request for production no. 6 in the second notice of deposition is 6 granted. 7 C. Request for Reasonable Attorney Fees 8 Defendants seek $2,380.00 for 8.5 hours spent in meeting and conferring on the issue and 9 for bringing the motion to compel production of the videos. Plaintiff does not specifically 10 respond to the request for sanctions. Pursuant to Rule 37 of the Federal Rules of Civil 11 Procedure, if the motion to compel is granted, the court must order the offending party “to pay 12 the movant’s reasonable expenses incurred in making the motion, including attorney’s fees” 13 unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or 14 discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection 15 was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. 16 R. Civ. P. 37(a)(5)(A). An award of sanctions is mandatory under Rule 37(a)(5) unless the party 17 shows that the failure to respond was substantially justified or that an award of expenses would 18 be unjust. Infanzon v. Allstate Ins. Co., 335 F.R.D. 305, 311 (C.D. Cal. 2020). It is the burden 19 of the party being sanctioned to establish this substantial justification or the existence of special 20 circumstances. Infanzon, 335 F.R.D. at 311. 21 Here, Defendants have presented evidence that they have made good faith attempts to 22 meet and confer prior to bringing the instant motion. Defendants contacted Plaintiff’s counsel by 23 email on November 17, 2020, and Plaintiff’s counsel responded that Plaintiff would search his 24 possessions again to locate the video and if it was located it would be produced immediately. 25 (ECF No. 47-5 at 2.) The parties continued to attempt to meet and confer by email and 26 Plaintiff’s counsel stated that Plaintiff does not have the videos and that his public defender 27 remembered seeing them on his grandmother’s cell phone. (Id. at 4.) Plaintiff’s grandmother 1 Plaintiff has continually asserted that he searched and was unable to locate the video, he has 2 never supplemented his response to the request for production to set forth the efforts made to 3 locate the video and counsels assertion that Plaintiff searched and did not find the video is 4 insufficient to satisfy Plaintiff’s discovery obligation. 5 On February 19, 2021, defense counsel sent a meet and compel letter attempting to 6 resolve the issue and informing Plaintiff that a motion to compel would be filed. (ECF No. 47- 7 6.) Plaintiff again responded that he does not have and cannot locate the cellphone videos and 8 that they did receive the subpoena to Mr. Bouieadams. (ECF No. 47-7.) Defendants have 9 demonstrated that they have attempted to meet and confer to resolve this issue.1 10 While Plaintiff argues that he does not have the video, it is clear from the evidence 11 presented that Plaintiff obtained the two videos prior to filing this action and to decide if a civil 12 action should be filed. Plaintiff did not produce the videos with his initial disclosures or in 13 response to the requests for production of documents. At his deposition on November 16, 2020, 14 Plaintiff testified that he still had the videos, and Mr. Bouieadams testified at his deposition that 15
16 1 It is unclear from the current motion why the parties filed a joint statement of discovery disagreement rather than availing themselves of the Court’s informal discovery process which would have resolved the issue without the 17 issuance of sanctions. See Informal Telephonic Conferences Regarding Discovery Disputes for Magistrate Judge Stanley A. Boone, Discovery Dispute Procedures, available at 18 http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/50161/ (“The intent of the informal discovery dispute conference is to avoid litigation costs and the unnecessary and collateral focus on sanctioning a party. 19 Accordingly, the Court will not impose sanctions against any party for the conduct giving rise to the discovery dispute.”) 20 Initially, Defendants informed Plaintiff that the issue could be handled through the informal discovery dispute 21 procedures. On January 21, 2021, Defendants emailed Plaintiff’s counsel because no videos had been produced in response to the November 18, 2020 email indicating that Plaintiff would search for the email. (January 12, 2021 email 22 from Lynn Carpenter to Nolan Kane, ECF No. 47-5 at 6.) At this time, Defendants requested that Plaintiff let them know his position or if it would be necessary to set an informal discovery conference on this topic. (Id. at 7.) On 23 January 25, 2021, Defendants informed Plaintiff that if the videos were not produced then they “may be forced to file a MTC and seek sanctions requesting its exclusion at an eventual trial. (January 25, 2021 email from Lynn Carpenter to 24 Nolan Kane, ECF No. 47-5 at 4.) In the February 19, 2021, meet and confer letter, Defendants indicated that they intended to file a motion to compel production and seek sanctions for the costs associated with the motion if Plaintiff 25 did not immediately supplement the responses to request for productions no. 17 and 18 in the request for production of documents, set one, and request for production no. 6 in the request for production for the second notice of deposition of Plaintiff. (February 19, 2021 Meet and Confer Letter, ECF No. 47-6.) Plaintiff responded on February 24, 2021 26 that he had fully complied and responded in written discovery and that any motions related to the cell phone videos were unnecessary. (February 24, 2021 Letter, ECF No. 47-7.) 27 The parties are advised that this matter could have been expeditiously handled through the informal discovery dispute 1 he provided the videos to Plaintiff a month after the incident. Despite Defendants specific 2 request that Plaintiff supplement his discovery responses, Plaintiff has steadfastly refused to do 3 so stating that his response was adequate. 4 Despite numerous requests for to supplement his discovery responses to address the 5 failure to produce the two videos, Plaintiff did not supplemented his discovery responses to 6 address the efforts that he has made to search for the videos nor is there any indication that he 7 contacted his brother to see if he had the videos. Rather, Plaintiff merely keeps asserting that he 8 does not have the videos without a verified response setting forth any efforts that he made in 9 searching for the video. 10 Plaintiff has not argued any substantial justification for the failure to supplement his 11 discovery responses nor has he argued that an award of expenses would be unjust. Rather, 12 Plaintiff merely argues that the videos do not show anything different than the officer’s body 13 camera and that his defense attorney did not think the videos were helpful to either party. 14 However, a party’s discovery obligations are not dependent on whether the party believes the 15 evidence is important or helpful. Rather, Plaintiff brought this lawsuit, had relevant evidence in 16 his possession which he was obligated to preserve, and he has not produced the evidence nor 17 provided a supplemental discovery response setting forth any good faith effort to locate the 18 videos. The Court finds that an award of attorney fees pursuant to Fed. R. Civ. P. 37 is 19 appropriate. 20 Reasonable attorney fees shall be awarded pursuant to Fed. R. Civ. P. 37(a)(5)(A) for the 21 costs of meeting and conferring and preparing the instant motion. Defendant seeks attorney fees 22 for eight and one half hours spent in meeting and conferring and preparing the instant motion. In 23 determining if the amount requested is reasonable courts use the lodestar method which 24 multiplies the number of hours reasonably expended by counsel by the reasonable hourly rate. 25 Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Camacho v. Bridgeport 26 Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008); Infanzon, 335 F.R.D. at 314. 27 Counsel seeks $280.00 per hour for the time expended in this action. In the Fresno 1 range from $200.00 to $425.00 per hour. In re Taco Bell Wage & Hour Actions, 222 F.Supp.3d 2 813, 838 (E.D. Cal. 2016). Counsel Kevin Louth received his juris doctorate in 1983 and has 3 been a member in good standing of the California Bar since December 1983. (Decl. of Attorney 4 Kevin H. Louth (“Louth Decl.”), ¶ 2, ECF No. 50.) He is a partner in the firm of Manning & 5 Kass Ellrod Ramirez Trester LLP, and a member of the firm’s Strategy, Writs, and Appeals 6 Team. (Id., ¶ 3.) Counsel Lynn Carpenter has been a member in good standing of the State Bar 7 of Oklahoma since September of 2011 and the California State Bar since June 2016. (Decl. of 8 Attorney Lynn L. Carpenter (“Carpenter Decl.”), ¶ 3.) 9 Mr. Louth has approximately 38 years of experience and Ms. Carpenter has 10 approximately ten years of experience. In the Eastern District of California, attorneys with less 11 than fifteen years of experience are awarded hourly rates of $250 to 300 per hour. Perkins v. 12 City of Modesto, No. 1:19-CV-00126-LJO-EPG, 2020 WL 4547325, at *2 (E.D. Cal. Aug. 6, 13 2020); see also Atayde v. Napa State Hosp., No. 1:16-CV-00398-DAD-SAB, 2020 WL 2770061, 14 at *13 (E.D. Cal. May 28, 2020) (finding $350 per hour to be a reasonable hourly rate for an 15 attorney with 13 years of experience in civil rights case). The Court finds that the rate of 16 $280.00 per hour for the services of counsel in this action is reasonable given their experience. 17 Defendants seek 2 hours for the time expended by Ms. Carpenter in preparing meet and 18 confer letters, assembling various exhibits to support the motion to compel, and for final 19 revisions to the motion. (Carpenter Decl., ¶ 4.) Mr. Louth seeks 6.5 hours for time spend 20 reviewing and summarizing the relevant pleadings, discovery, correspondence, and portions of 21 the deposition testimony to draft the joint statement for the motion to compel, doing legal 22 research, and writing the pertinent arguments which were all necessary due to Plaintiff’s failure 23 to produce the videos of the incident. (Louth Decl., ¶ 5.) The Court notes that Defendants do 24 not state that they are seeking time for preparing the various meet and confer emails from 25 November 2020 through February 2021 which included the requests to produce the videos. 26 Defendants are requesting the time spent in preparing meet and confer letters, but the only actual 27 letter in the record is the ten page letter dated February 19, 2021. (ECF No. 47-6). The Court 1 meet and confer emails as they are the only other correspondence on the issue in the record. As 2 these emails also address issues beyond the failure to produce the instant videos, the Court shall 3 reduce the time sought by one hour to accommodate time spent on these other issues. 4 Defendants also seek six and one half hours for time spent in preparing their portion of the 5 instant joint statement and assembling the exhibits (ECF No. 47). The Court finds that seven and 6 a half hours sought is a reasonable amount of time to have expended on attempting to gain 7 Plaintiff’s compliance with his discovery obligations. 8 Defendants seek for the attorney fees to be awarded jointly and severally against Plaintiff 9 and his counsel. Rule 37 provides that “the court must order the disobedient party, the attorney 10 advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by 11 the failure, unless the failure was substantially justified or other circumstances make an award of 12 expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). “Both parties and counsel may be held personally 13 liable for expenses, ‘including attorney’s fees,’ caused by the failure to comply with discovery 14 orders.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763 (1980). Rule 37 sanctions are to be 15 diligently applied “to penalize those whose conduct may be deemed to warrant such a sanction, 16 [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.” 17 Roadway Exp., Inc., 447 U.S. at 763. (quoting National Hockey League v. Metropolitan Hockey 18 Club, 427 U.S. 639, 643 (1976)). The Ninth Circuit does “not require[ ] a finding of bad faith on 19 the part of the attorney before imposing sanctions under Rule 37.” Shaw v. Ultimate Franchises, 20 No. 8:18-02273 JLS ADSX, 2020 WL 5539963, at *2 (C.D. Cal. Aug. 25, 2020) (quoting Hyde 21 & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994)). 22 Accordingly, the Court grants the request for an award attorney fees in the amount of 23 $2,100.002 to Defendant for the costs incurred due to Plaintiff’s failure to produce the videos or 24 supplement his discovery responses and Plaintiff and his attorneys are jointly and severally liable 25 for the attorney fee award. 26 / / / 27 1 IV. 2 CONCLUSION AND ORDER 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. Defendants’ motion to compel a further response to request for production, set 5 one, nos. 17 and 18, and request for production no. 6 in the second notice of 6 deposition is GRANTED; 7 2. Plaintiff shall supplement his response to request for production, set one, nos. 17 8 and 18, and request for production no. 6 in the second notice of deposition within 9 fourteen (14) days of the date of entry of this order by producing the videos or a 10 verified response setting forth in detail his attempts to locate the two videos that 11 he obtained from Mr. Bouieadams; 12 3. Defendants’ request for sanctions pursuant to Fed. R. Civ. P. 37(a)(5)(A) is 13 granted and attorney fees in the amount of two thousand one hundred dollars 14 ($2,100.00) is awarded and Plaintiff and his attorneys are jointly and severally 15 liable for the award; 16 4. Within thirty (30) days of the date of entry of this order, Plaintiff shall pay two 17 thousand one hundred dollars ($2,100.00) to Manning & Kass, Ellrod, Ramirez, 18 Trester LLP, 801 S. Figueroa Street, 15th Floor, Los Angeles, California 90017- 19 3012 and file a notice with the Court demonstrating that the award has been paid; 20 and 21 5. Plaintiff is advised that the failure to comply with this order may result in the 22 issuance of sanctions, up to and including dismissal of this action. 23 24 IT IS SO ORDERED. OF. nf ee 25 | Dated: _ March 10, 2021 "
UNITED STATES MAGISTRATE JUDGE
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