1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Greg Moore; et al., ) No. CV 19-00290 TUC RM (MAA) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is the defendants’ motion, filed on March 20, 2024, to 16 prohibit the plaintiffs from using criminal discovery documents and violating Rule 26(b)(1). 17 Doc. 444. The plaintiffs filed a response on March 22, 2024. Doc. 449. The defendants 18 filed a reply on March 28, 2024. Doc. 454. The defendants filed a supplement to their 19 motion on March 28, 2024. Doc. 456. 20 The plaintiffs in this action (“the Moores”) claim their constitutional rights were 21 violated when the defendants obtained and executed two search warrants in connection with 22 an arson investigation into the destruction of the Forgeus Apartments on June 8, 2017. 23 Complaint, Doc. 1; see also Doc. 391, p. 2 (“The remaining claims in this matter are Counts 24 One, Three and Four of the Plaintiffs’ Complaint.”). The Moores bring this action pursuant 25 to 42 U.S.C. § 1983. Doc. 1, p. 4. Their Complaint was filed on May 24, 2019. Doc. 1. 26 The first warrant, for DNA and other personal effects, was executed on June 9, 2017. 27 Doc. 1, p. 8. The second warrant, for financial documents, was executed on June 14, 2017. 28 Doc. 1, pp. 9-10. The Moores claim, among other things, that the warrant applications were 1 not supported by probable cause and contained “material misrepresentations and omissions.” 2 Doc. 1, pp. 16-18. 3 Greg Moore is currently being prosecuted by the State of Arizona. Doc. 444, p. 2. 4 In late 2022 and early 2023, the State disclosed to Greg Moore a large number of documents 5 pursuant to Ariz.R.Crim.P. 15.1. Id. Apparently the Moores have been using some of these 6 documents in this case, specifically as deposition exhibits. Doc. 444, p. 2. On March 18, 7 2023, the Moores disclosed all of these documents to the defendants in a disclosure 8 supplement. Id. The disclosures constitute approximately 33,000 pages of material including 9 attachments. Id. The defendants argue that the Moores’ use of this material “is wholly 10 improper, beyond the scope of Fed.R.Civ.P. 26(b)(1).” 11 12 Discussion 13 Rule 26(b)(1) discusses the scope of discovery. Fed.R.Civ.P. In general, 14 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 15 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’ 16 resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 17 Fed. R. Civ. P. 26 (emphasis added). The Rule explains in general what discovery a party 18 may obtain from another. Id. It does not, however, limit what documents or information a 19 party may use to prove its claim. Id. While it might be true that the Moores could not, 20 pursuant to Rule 26(b)(1), compel the State to disclose all of those documents, the Rule does 21 not forbid the Moores from using those documents in this lawsuit. Fed.R.Civ.P.; see, e.g., 22 Belford Strategic Inv. Fund, LLC v. United States, 2005 WL 3278597, at *3 (N.D. Cal. Nov. 23 7, 2005) (“Any additional discovery obtained through a parallel criminal proceeding is a 24 windfall, not an entitlement.”). “Admissibility is different than discoverability.” Caballero 25 v. Bodega Latina Corp., 2017 WL 3174931, at *9 (D. Nev. July 25, 2017). (The Caballero 26 court considered the more common situation where the scope of discovery was broader than 27 28 1 the standard for admissibility, but in the instant motion this court considers the opposite 2 circumstance.). 3 Of course, if the documents were irrelevant, they would not be admissible. If they 4 were privileged or otherwise sensitive, their use could be limited or precluded. But the 5 defendants do not make any of these arguments. They insist instead that the use of any 6 documents disclosed pursuant to Ariz.R.Crim.P. 15.1 is improper in a civil suit, but they have 7 provided no case law to support their argument, and the court has found none. See also 8 Rosenthal v. Giuliani, 2001 WL 121944, at *2 (S.D.N.Y. Feb. 9, 2001) (“[A] stay in the 9 [civil] action will streamline later civil discovery since transcripts from the criminal case will 10 be available to the civil parties.”). 11 In the alternative, the defendants argue that the documents were not disclosed “in a 12 timely manner.” Fed.R.Civ.P. 26(e)(1)(A). They argue that “it was [the plaintiffs’] 13 obligation to disclose the Criminal Discovery Dump seasonably – not on the eve of the 14 depositions of the two named defendants. . . .” 15 In their response, the Moores explain that this case is subject to the Mandatory Initial 16 Discovery Pilot program, under which they must disclose “any document that comes into 17 their possession which might bear upon any claim or defense.” Doc. 449, p. 1 (emphasis in 18 original); see General Order 17-08, Doc. 3, pp. 3-12. And they disclosed the criminal 19 discovery documents with that requirement in mind. 20 The Moores further note that document disclosure in this lawsuit was originally 21 restricted by the law enforcement investigatory privilege (LEIP). Accordingly, the 22 defendants initially disclosed documents and photographs that had been redacted in 23 accordance with the privilege. The court has since rescinded the LEIP as pertaining to this 24 case. But, according to the Moores, the defendants “have never supplemented1 the 25 disclosures so that Plaintiffs know they have all the material withheld or redacted.” Doc. 26 27 1 The defendants maintain, to the contrary, that they have supplemented their initial 28 discovery response. Doc. 454, p. 3. 1 449, p. 2 (emphasis in original). The Moores found that some of those unredacted materials 2 were disclosed by the State in the criminal case, and they used some of those unredacted 3 materials during depositions in this action. 4 It appears that the documents that have already been used by the Moores during 5 deposition are relevant and discoverable. The defendants, however, do not specifically 6 identify these documents. Neither do they state when these particular documents were 7 disclosed to the Moores. It is therefore difficult for the court to determine whether they were 8 disclosed “in a timely manner.” Fed.R.Civ.P. 26(a). Nevertheless, the court agrees that 9 disclosure of large amounts of discovery “on the eve of the deposition of the two named 10 defendants” could be problematic, and the parties should work to minimize any possible 11 prejudice stemming from such a practice. Doc. 444, p. 3. If the defendants need time to 12 digest the voluminous disclosure, the parties should consider resetting the dates for the 13 depositions. 14 The defendants further assert that the plaintiffs’ counsel refuses “to conduct 15 depositions in this civil case within the bounds of Fed.R.Civ.P. 26(b)(1).” Doc. 444, p. 2. 16 The court agrees as a general matter that depositions are discovery that fall within the limits 17 of Rule 26(b)(1), and discovery should be confined to the “claims and defenses asserted in 18 the pleadings.” Fed.R.Civ.P.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Greg Moore; et al., ) No. CV 19-00290 TUC RM (MAA) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is the defendants’ motion, filed on March 20, 2024, to 16 prohibit the plaintiffs from using criminal discovery documents and violating Rule 26(b)(1). 17 Doc. 444. The plaintiffs filed a response on March 22, 2024. Doc. 449. The defendants 18 filed a reply on March 28, 2024. Doc. 454. The defendants filed a supplement to their 19 motion on March 28, 2024. Doc. 456. 20 The plaintiffs in this action (“the Moores”) claim their constitutional rights were 21 violated when the defendants obtained and executed two search warrants in connection with 22 an arson investigation into the destruction of the Forgeus Apartments on June 8, 2017. 23 Complaint, Doc. 1; see also Doc. 391, p. 2 (“The remaining claims in this matter are Counts 24 One, Three and Four of the Plaintiffs’ Complaint.”). The Moores bring this action pursuant 25 to 42 U.S.C. § 1983. Doc. 1, p. 4. Their Complaint was filed on May 24, 2019. Doc. 1. 26 The first warrant, for DNA and other personal effects, was executed on June 9, 2017. 27 Doc. 1, p. 8. The second warrant, for financial documents, was executed on June 14, 2017. 28 Doc. 1, pp. 9-10. The Moores claim, among other things, that the warrant applications were 1 not supported by probable cause and contained “material misrepresentations and omissions.” 2 Doc. 1, pp. 16-18. 3 Greg Moore is currently being prosecuted by the State of Arizona. Doc. 444, p. 2. 4 In late 2022 and early 2023, the State disclosed to Greg Moore a large number of documents 5 pursuant to Ariz.R.Crim.P. 15.1. Id. Apparently the Moores have been using some of these 6 documents in this case, specifically as deposition exhibits. Doc. 444, p. 2. On March 18, 7 2023, the Moores disclosed all of these documents to the defendants in a disclosure 8 supplement. Id. The disclosures constitute approximately 33,000 pages of material including 9 attachments. Id. The defendants argue that the Moores’ use of this material “is wholly 10 improper, beyond the scope of Fed.R.Civ.P. 26(b)(1).” 11 12 Discussion 13 Rule 26(b)(1) discusses the scope of discovery. Fed.R.Civ.P. In general, 14 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the 15 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’ 16 resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 17 Fed. R. Civ. P. 26 (emphasis added). The Rule explains in general what discovery a party 18 may obtain from another. Id. It does not, however, limit what documents or information a 19 party may use to prove its claim. Id. While it might be true that the Moores could not, 20 pursuant to Rule 26(b)(1), compel the State to disclose all of those documents, the Rule does 21 not forbid the Moores from using those documents in this lawsuit. Fed.R.Civ.P.; see, e.g., 22 Belford Strategic Inv. Fund, LLC v. United States, 2005 WL 3278597, at *3 (N.D. Cal. Nov. 23 7, 2005) (“Any additional discovery obtained through a parallel criminal proceeding is a 24 windfall, not an entitlement.”). “Admissibility is different than discoverability.” Caballero 25 v. Bodega Latina Corp., 2017 WL 3174931, at *9 (D. Nev. July 25, 2017). (The Caballero 26 court considered the more common situation where the scope of discovery was broader than 27 28 1 the standard for admissibility, but in the instant motion this court considers the opposite 2 circumstance.). 3 Of course, if the documents were irrelevant, they would not be admissible. If they 4 were privileged or otherwise sensitive, their use could be limited or precluded. But the 5 defendants do not make any of these arguments. They insist instead that the use of any 6 documents disclosed pursuant to Ariz.R.Crim.P. 15.1 is improper in a civil suit, but they have 7 provided no case law to support their argument, and the court has found none. See also 8 Rosenthal v. Giuliani, 2001 WL 121944, at *2 (S.D.N.Y. Feb. 9, 2001) (“[A] stay in the 9 [civil] action will streamline later civil discovery since transcripts from the criminal case will 10 be available to the civil parties.”). 11 In the alternative, the defendants argue that the documents were not disclosed “in a 12 timely manner.” Fed.R.Civ.P. 26(e)(1)(A). They argue that “it was [the plaintiffs’] 13 obligation to disclose the Criminal Discovery Dump seasonably – not on the eve of the 14 depositions of the two named defendants. . . .” 15 In their response, the Moores explain that this case is subject to the Mandatory Initial 16 Discovery Pilot program, under which they must disclose “any document that comes into 17 their possession which might bear upon any claim or defense.” Doc. 449, p. 1 (emphasis in 18 original); see General Order 17-08, Doc. 3, pp. 3-12. And they disclosed the criminal 19 discovery documents with that requirement in mind. 20 The Moores further note that document disclosure in this lawsuit was originally 21 restricted by the law enforcement investigatory privilege (LEIP). Accordingly, the 22 defendants initially disclosed documents and photographs that had been redacted in 23 accordance with the privilege. The court has since rescinded the LEIP as pertaining to this 24 case. But, according to the Moores, the defendants “have never supplemented1 the 25 disclosures so that Plaintiffs know they have all the material withheld or redacted.” Doc. 26 27 1 The defendants maintain, to the contrary, that they have supplemented their initial 28 discovery response. Doc. 454, p. 3. 1 449, p. 2 (emphasis in original). The Moores found that some of those unredacted materials 2 were disclosed by the State in the criminal case, and they used some of those unredacted 3 materials during depositions in this action. 4 It appears that the documents that have already been used by the Moores during 5 deposition are relevant and discoverable. The defendants, however, do not specifically 6 identify these documents. Neither do they state when these particular documents were 7 disclosed to the Moores. It is therefore difficult for the court to determine whether they were 8 disclosed “in a timely manner.” Fed.R.Civ.P. 26(a). Nevertheless, the court agrees that 9 disclosure of large amounts of discovery “on the eve of the deposition of the two named 10 defendants” could be problematic, and the parties should work to minimize any possible 11 prejudice stemming from such a practice. Doc. 444, p. 3. If the defendants need time to 12 digest the voluminous disclosure, the parties should consider resetting the dates for the 13 depositions. 14 The defendants further assert that the plaintiffs’ counsel refuses “to conduct 15 depositions in this civil case within the bounds of Fed.R.Civ.P. 26(b)(1).” Doc. 444, p. 2. 16 The court agrees as a general matter that depositions are discovery that fall within the limits 17 of Rule 26(b)(1), and discovery should be confined to the “claims and defenses asserted in 18 the pleadings.” Fed.R.Civ.P. 26, Advisory Committee’s Note (2000 Amendment). The 19 defendants, however, do not offer any specifics as to what they believe the plaintiffs’ counsel 20 has done or will do that exceeds the bounds of Rule 26(b)(1). Fed.R.Civ.P. The court will 21 not issue an advisory order on this record. 22 The defendants filled a supplement to their motion on March 28, 2024. Doc. 456. 23 This brief, however, does not supplement the arguments made in the original motion. Id. 24 Instead, it raises two new issues concerning (1) “a subpoena issued to the City of Tucson” 25 and (2) “items emailed to Defendants by attorney Moore, via a Dropbox link.” Doc. 456. 26 The brief further asserts that “Defendants’ Motion for Protective order (Dkt. 444) will be 27 fully briefed as of March 28, 2024,” which was the date the supplement was filed. 28 1 If the defendants intend to raise additional issues, they should do so in a separate 2 || motion and allow the plaintiffs an opportunity to file a responsive brief in accordance with 3 || the Local Rules. The court expresses no opinion as to the merits of these additional issues. 5 IT IS ORDERED that the defendants’ motion, filed on March 20, 2024, to prohibit 6 || the plaintiffs from using criminal discovery documents and violating Rule 26(b)(1) is 7 || DENIED. Doc. 444. 8 DATED this 24" day of April, 2024. 10 +) ( /\
12 7 Ko Ge WY, 13 Honorable Michael A. Ambri United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28