Perkins v. City of Modesto

• Court: District Court, E.D. California
• Decided: March 23, 2020
• Docket: 1:19-cv-00126
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7

8 JASON B. PERKINS, Case No. 1:19-cv-00126-LJO-EPG 9 Plaintiff, ORDER: 10 v. 1. GRANTING IN PART PLAINTIFF’S 11 MOTION TO COMPEL; CITY OF MODESTO, et al., 12 2. FINDING SPOLIATION IN RELATION Defendants. TO CELL PHONE ESI; 13 3. DENYING PLAINTIFF’S MOTION TO 14 REVOKE STIPULATED PROTECTIVE ORDERS; 15

16 4. OVERRULING DEFENDANT’S OBJECTIONS REGARDING PUBLIC 17 DISCLOSURE OF OFFICER PERSONNEL AND IA FILES WITH 18 LEAVE TO PROPOSE REDACTIONS; 19 5. GRANTING PLAINTIFF’S MOTION 20 FOR EXPENSES; AND

21 6. DENYING PLAINTIFF’S MOTION FOR GENERAL SANCTIONS. 22

23 (ECF Nos. 44, 49) 24 Pending before the Court is Plaintiff’s motion to compel and various other discovery 25 motions. (ECF Nos. 44, 49). The Court finds the motions appropriate for decision on the record, 26 without oral argument, pursuant to Local Rule 230(g). The Court grants in part Plaintiff’s motion 27 to compel, finds spoliation in relation to the cell phone ESI, denies Plaintiff’s motion to revoke 28 the stipulated protective orders, overrules Defendants’ objection to public disclosure of police

1 1 personnel files and internal affairs investigation (“IA”) files, grants Plaintiff’s motion for 2 expenses, and denies Plaintiff’s motion for general sanctions. As to the overruling of Defendants’ 3 objection to public disclosure of police personnel and IA files, the Court grants Defendants leave 4 to file a motion seeking to keep specific officer personnel and IA files confidential and/or 5 proposing redactions to such files prior to public disclosure and orders the parties to maintain the 6 confidentiality of such files pending resolution of such motion. 7 In ruling on the pending motions, the Court declines to consider arguments and 8 information provided by the Parties in the non-compliant, 148-page joint statement of discovery 9 dispute and attachments thereto, except as to the issue of spoliation. (See ECF Nos. 46, 47.) 10 I. BACKGROUND 11 A. Allegations of Amended Complaint 12 Plaintiff filed this civil rights action on January 29, 2019 (ECF No. 1) and filed an 13 amended complaint on June 13, 2019 (ECF No. 22). The amended complaint alleges the 14 following: 15 On November 6, 2017, Plaintiff drove his significant other, Shannon Agnitsch, to the 16 bank, and waited in his vehicle, sitting in the driver’s seat, in the bank’s parking lot while Ms. 17 Agnitsch entered the bank. Plaintiff’s vehicle was approached by Defendants Jerry J. Ramar and 18 Ryan Olson, on-duty Modesto Police Department (“MPD”) police officers. Plaintiff was not 19 aware that these officers had approached his vehicle. Defendant Ramar unholstered and fired his 20 MPD-issued firearm at Plaintiff without warning and without provocation, shooting at Plaintiff 21 and Plaintiff’s vehicle. Ramar shot at Plaintiff approximately six times, including in the face, 22 chest, left arm, and left shoulder. Defendant Ryan Olson stood by as Ramar shot Plaintiff, without 23 protesting or intervening, despite the opportunity to do so. 24 Plaintiff required life-saving medical treatment at the scene of the shooting and was 25 transported to the hospital for further life-saving treatment, including several surgeries. Plaintiff 26 remained in critical condition for two weeks following the shooting. Plaintiff still has three bullets 27 and/or metal jackets lodged inside his body and has been advised the removal of these would be 28 dangerous. Plaintiff has also undergone two additional surgeries since the shooting and expects

2 1 that at least a few more surgeries will be needed in the future. His resulting injuries have left him 2 with paralysis in his left hand, right arm, and face. 3 On June 28, 2018, Plaintiff submitted a citizen complaint form to Defendant Modesto 4 Police Department, alleging misconduct in connection with the November 6, 2017, officer- 5 involved shooting of Plaintiff. On December 18, 2018, the MPD Shooting Review Board, 6 concluded that Defendant Ramar’s discharge of his firearm against Plaintiff was “within policy,” 7 and, as a result that the allegations in Plaintiff’s citizen complaint form were “Unfounded.” 8 On January 29, 2019, Plaintiff filed this action, naming as defendants the City of Modesto, 9 the Modesto Police Department, Galen L. Carroll, Jerry J. Ramar, and Ryan Olson. (ECF No. 1.) 10 Plaintiff brings claims for use of unreasonable force in violation of the Fourth and Fourteenth 11 Amendments of the U.S. Constitution; and California state law claims of unreasonable force, 12 assault and battery, intentional infliction of emotional distress, negligence, and violation of the 13 Bane Act. 14 On March 11, 2019, Defendant Ramar resigned from the MPD to accept a promotional 15 lieutenant-rank position with the Oakdale Police Department. On May 9, 2019, more than four 16 months after the present action was filed, MPD sent Plaintiff correspondence informing him that, 17 “as a result of [Ramar’s] resignation this complaint has been closed,” pursuant to the MPD’s 18 Citizen Complaint Policy, which states, “A complaint is considered ‘Closed’ when an employee 19 resigns his/her employment prior to the completion of the investigation.” 20 B. Stipulated Protective Orders 21 On August 6, 2019, the Parties filed their first stipulation for a protective order (ECF No. 22 28), and the Court entered the first stipulated protective order on August 6, 2019 (ECF No. 29). 23 On September 9, 2019, the parties file a second stipulation for a protective order (ECF No. 32) 24 and the Court entered the second stipulated protective order on September 10, 2019 (ECF 25 No. 33). In both the first and second stipulated protective order, Plaintiff specified that he was not 26 waiving, forfeiting, or abandoning “his contention that Defendants failed timely and appropriately 27 to move for a protective order under Fed. R. Civ. P. 26(c).” (ECF No. 29 at 3 n.1; ECF No. 33 28 at 4 n.1.)

3 1 C. Discovery Disputes 2 In November 2019, the parties informed the Court that they had a discovery dispute and 3 requested that the Court set an informal discovery dispute conference. The Court held the 4 requested informal discovery dispute conference on November 21, 2019, and granted Plaintiff 5 leave to file a motion to compel and/or for sanctions based on any issue raised in the informal 6 discovery dispute letters submitted to the Court on November 20, 2019, as well as any issues 7 discussed during the informal discovery dispute conference. (See ECF No. 41.) The Court also set 8 a hearing for January 24, 2020, for Plaintiff’s anticipated motion to compel. (Id.) 9 On January 3, 2020, Plaintiff filed his motion seeking to compel discovery and raising 10 various other discovery issues (ECF No. 44). On January 17, 2020, the parties submitted their 11 joint statement of discovery disagreement (ECF No. 46). The joint statement was 148 pages long 12 (and included 377 pages of exhibits) and thus violated the Court’s Scheduling Order, which 13 provides that joint statements of discovery disputes “shall not exceed to twenty-five (25) pages” 14 not including exhibits. (ECF No. 20 at 4.) The joint statement also violated the Local Rules 15 regarding discovery dispute statements because, for example, it did not contain a clear statement 16 of what documents were claimed to be still outstanding. See Local Rule 251(c). The Court 17 therefore vacated the January 24, 2020, hearing on the motion to compel and directed the parties 18 to file a revised joint statement of discovery dispute that complied with the Court’s scheduling 19 order and the Local Rules. However, given the number of issues raised by Plaintiff, the Court 20 granted the parties an additional five pages, for a total length of thirty pages, for the joint 21 statement. (ECF No. 47.) The Court also informed the parties that they did not need to rebrief the 22 spoliation issue as that issue was sufficiently presented in the non-compliant joint statement 23 already submitted. (Id.) The parties filed the revised joint statement of discovery dispute on 24 February 5, 2020. (ECF No. 49.) The motion seeking to compel discovery and raising other 25 discovery disputes (ECF No. 44) and the revised joint statement of discovery dispute (ECF No. 26 49) are currently before the Court. 27 //// 28 ////

4 1 II. MOTION TO COMPEL DISCOVERY 2 A. Legal Standards 3 A party responding to a discovery request must provide all responsive information in that 4 party’s “possession, custody, or control.” Fed. R. Civ. P. 4(a)(1). “‘Accordingly, a party has an 5 obligation to conduct a reasonable inquiry into the factual basis of his responses to discovery. 6 Based on that inquiry, a party responding to a request for production ‘is under an affirmative duty 7 to seek that information reasonably available’ to it and make an appropriate production of 8 responsive documents.’” Hartline v. Nat'l Univ., 2018 WL 1014611, at *3 (E.D. Cal. Feb. 22, 9 2018) (citations omitted); see Kaur v. Alameida, 2007 WL 1449723, *2 (E.D. Cal. May 15, 2007) 10 (ordering defendants to conduct additional research for responsive documents and reminding 11 defendants and counsel “of their duty under Rule 34 to conduct a diligent search and reasonable 12 inquiry in effort to obtain responsive documents”). 13 The responding party “cannot furnish only that information within his immediate 14 knowledge or possession; he is under an affirmative duty to seek that information reasonably 15 available to him from his employees, agents, or others subject to his control.” Rogers v. Giurbino, 16 288 F.R.D. 469, 485 (S.D. Cal. 2012) (internal quotation marks and citations omitted); see Lopez 17 v. Florez, 2013 WL 1151948, * 2 (E.D. Cal. March 19, 2013) (“A responding party has an 18 affirmative duty to reasonably seek information requested under Rule 34(a) from its agents or 19 others under its control.”) (citing Hill v. Eddie Bauer, 242 F.R.D. 556, 560 (C.D. Cal. 2007)). “A 20 party is deemed to have control over documents if he or she has a legal right to obtain them.” 21 Giurbino, 288 F.R.D. at 485 (citations omitted). The responding party must “make a reasonable 22 inquiry to determine whether responsive documents exist, and if they do not, the party should so 23 state with sufficient specificity to allow the Court to determine whether the party made a 24 reasonable inquiry and exercised due diligence.” Id. (citations and internal quotation marks 25 omitted). 26 A party propounding discovery requests “is entitled to individualized, complete responses 27 to each discovery request, and generalized responses that do not specifically indicate whether all 28 responsive documents to a particular discovery request have been produced are insufficient.”

5 1 Washington v. Rouch, No. 1:15-cv-00725-DAD-BAM, 2017 WL 4123384, at *3 (E.D. Cal. Sept. 2 15, 2017) (citing Louen v. Twedt, 236 F.R.D. 502, 504-05 (E.D. Cal. 2006). 3 Discovery responses must also be signed by at least one attorney of record in the 4 attorney’s own name. Fed. R. Civ. P. 26(g)(1). By signing, the attorney is certifying that, to the 5 best of her or his “knowledge, information, and belief formed after a reasonable inquiry,” that a 6 “disclosure is complete and correct as of the time it is made” and, that a response or objection to a 7 discovery request is: 8 (i) consistent with [the Federal Rules of Civil Procedure] and 9 warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing 10 new law;

11 (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and 12 (iii) neither unreasonable nor unduly burdensome or expensive, 13 considering the needs of the case, prior discovery in the case, the 14 amount in controversy, and the importance of the issues at stake in the action. 15 Id. A court is required to strike “an unsigned disclosure, request, response, or objection . . . unless 16 a signature is promptly supplied after the omission is called to the attorney’s . . . attention.” Fed. 17 R. Civ. P. 26(g)(2). 18 The duty to make a “reasonable inquiry” referred to in Rule 26(g), 19 is satisfied if the investigation undertaken by the attorney and the conclusions 20 drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. In making the inquiry, the 21 attorney may rely on assertions by the client and on communications with other counsel in the case as long as that reliance is appropriate under the circumstances. 22 Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances. 23 Rule 26(g) does not require the signing attorney to certify the truthfulness of the 24 client’s factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided 25 all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyer's certification under Rule 26(g) should be 26 distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33. 27

28 Fed. R. Civ. P. 26(g), Advisory Committee Notes (1993) (citations omitted).

6 1 Rule 26(g) requires counsel to be “proactive in ensuring that his clients are conducting 2 thorough and appropriate document searches, especially in light of obvious gaps and 3 underproduction.” Logtale, Ltd. v. IKOR, Inc., 2013 WL 3967750, at *2 (N.D. Cal. 2013). 4 Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal 5 Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete. As 6 the Advisory Committee's Note to Rule 26(g) states, “[t]he duty to make a ‘reasonable inquiry’ is satisfied if the investigation undertaken by the attorney and 7 the conclusions drawn therefrom are reasonable under the circumstances.” Therefore, where . . . counsel notices obvious “gaps in the production” of 8 documents by his clients, he is obligated to make a reasonable inquiry as to the thoroughness of that search. 9 10 Id. (citations omitted).

11 The party propounding discovery may seek an order to compel responses when the

12 opposing party fails to respond or has provided evasive or incomplete responses. Fed. R. Civ. P.

13 37(a)(3)(B). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a

14 failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Further, “a failure to object to

15 discovery requests within the time required constitutes a waiver of any objection.” Richmark

16 Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992).

17 B. Unknown Outstanding Discovery

18 1. Plaintiff’s Arguments

19 Plaintiff states, “he has no way of knowing what responsive discovery remains

20 outstanding,” and that he “is only aware of the existence of outstanding discovery that was

21 obviously not produced, based on its ascertainable omission from discovery that was produced.”

22 He notes that Federal Rule of Civil Procedure 26(g)(1) requires “a responding party’s attorney to

23 certify that a discovery response is complete and ‘formed after a reasonable inquiry,’” but that the

24 City “unilaterally decided (over Plaintiff’s repeated objections) that it would only produce

25 discovery on a ‘rolling’ basis, in violation of Fed. R. Civ. P. 34(b)(2)(A)’s time-limits.” Plaintiff

26 thus believes that neither Defendants nor their counsel have adequately certified that all

27 responsive documents have been submitted with respect to any discovery request.

28 Plaintiff cites to three specific examples that he says support his belief. (ECF No. 49 at 3-

7 1 4.) Plaintiff argues that the types of unexplained omissions demonstrated in these three examples, 2 in addition to Defendants’ counsel’s repeated unfulfilled promises to produce documents by dates 3 certain, have caused “Plaintiff to have grave doubt that Defendant City has complied with its 4 discovery obligations.” (ECF No. 49 at 4.) Plaintiff contends that this is the type of situation 5 where it is appropriate to have the responding party produce a verification after double-checking 6 its files. 7 The first example cited by Plaintiff is an unproduced video-recorded officer-involved 8 shooting (“OIS”) interview of Defendant Ramar. Plaintiff states: 9 On July 25, 2019, Defendant City belatedly and informally produced what was represented to be the officer-involved shooting (“OIS”) investigation and 10 associated materials (Bates 1-1576). At least one document was obviously unproduced, a “recording” of Defendant Ramar’s interview, acknowledged to 11 exist in a document that was produced (Bates No. 1057). Plaintiff’s counsel inquired as to why the document was missing. On January 3, 2020, Defendant 12 City informally produced the recording, without an explanation as to why it had not been produced with the supposedly-complete OIS investigation. 13 (ECF No. 49 at 3) (citations to ECF No. 46 omitted).) 14 The second example cited by Plaintiff is an unproduced pre-employment psychiatric 15 evaluation. Plaintiff states: 16 On August 2, 2019, Defendant City belatedly and informally produced what was represented to be Defendant Ramar’s personnel file. (Bates No. 1257-1508). On 17 August 7, 2019, Defendant City’s counsel certified, pursuant to Fed. R. Civ. P. 26(g)(1), in an amended discovery response that the personnel file had been 18 produced. California requires that peace officers undergo a psychological screening prior to employment, Cal. Code Regs., tit. 11, § 1955(a). This document 19 was missing from Defendant City’s supposedly-complete production. Plaintiff’s counsel inquired as to why the document was missing. On September 26, 2019, 20 Defendant City informally produced Defendant Ramar’s pre-employment psychological evaluation, without explanation as to why it had not been produced 21 with the supposedly-complete personnel file. 22 (ECF No. 49 at 3-4) (citations to ECF No. 46 omitted).) 23 The third example cited by Plaintiff is unproduced documents from Reed v. City of 24 Modesto. Plaintiff states: 25 On September 19, 2019, Plaintiff requested “All DOCUMENTS relating to any investigation concerning the subjects giving rise to Reed v. City of Modesto, E.D. 26 Cal. Case No. 1:11-cv-01083-AWI-GSA—including, but not limited to, formal and informal complaints, interviews conducted, statements received, 27 correspondence sent or received, video/audio recordings, reports and memos prepared.” On October 24, 2019, Defendant City responded: “The Modesto Police 28 Department has performed a diligent and thorough search and does not possess any ‘formal or informal complaints, interviews conducted, statements received,

8 1 correspondence sent or received, video/audio records, reports and memos prepared’ for this incident.” However, on January 24, 2020, Defendant City’s 2 counsel stated that he “received the IA report that corresponds with the Reed v. Modesto lawsuit,” confirming that the previous unsuccessful search for responsive 3 documents was not “a diligent and thorough search.” 4 (ECF No. 49 at 4) (citations to ECF No. 46 omitted).)

5 2. Defendants’ Arguments

6 Defendants have responded to the examples provided by Plaintiff. As to the first and

7 second examples provided by Plaintiff—the unproduced video-recorded OIS interview of

8 Defendant Ramar and the unproduced pre-employment psychiatric evaluation—Defendants state

9 the following: “To Defendants’ knowledge, this is not a live issue. There is no disagreement for

10 the Court to adjudicate. This [recording and evaluation] has been produced.” (ECF No. 49 at 16.)

11 As to the third example provided by Plaintiff—the unproduced Reed v. City of Modesto

12 documents—Defendants state:

13 Defendants previously indicated that Modesto Police Department did [not] possess any documents related to the Reed v. Modesto case. At the November 21, 2019 informal 14 discovery dispute telephone conference, Judge Grosjean requested that counsel for Defendants contact the prior attorneys who represented the City. Counsel contacted Susan 15 Coleman, a private attorney who represented the City. Ms. Coleman sent the IA for the incident, which has been BATES stamped and has been offered to be produced pursuant 16 to a protective order. (ECF No. 49 at 16.) 17 3. Analysis 18 While the Court appreciates that Defendants have supplemented their production, 19 Defendants’ response on this issue misses the point. Plaintiff contends that neither Defendants nor 20 their counsel have adequately certified that all responsive documents have been submitted with 21 respect to any discovery request. Plaintiff also contends that the specific examples he provides 22 demonstrate unexplained omissions from Defendants’ discovery responses and that it is still 23 unclear whether all information responsive to Plaintiff’s discovery requests have been disclosed 24 by Defendants. Finally, Plaintiff contends that Defendants should be required to produce a 25 verification after double-checking its files. 26 Defendants have not denied or otherwise responded to Plaintiff’s contentions. (See ECF 27 No. 49 at 16.) Instead, Defendants merely state their belief that they have provided information 28

9 1 responsive to the three specific examples Plaintiff cites or that they will do so subject to a 2 protective order. 3 Under Federal Rule of Civil Procedure 26(g), discovery responses must be signed, 4 certifying that, to the best of the attorney’s knowledge, information, and belief, formed after a 5 reasonable inquiry, the discovery response is “complete and correct as of the time it is made.” 6 Fed. R. Civ. P. 26(g)(1). A court is required to strike “an unsigned disclosure, request, response, 7 or objection . . . unless a signature is promptly supplied after the omission is called to the 8 attorney’s . . . attention.” Fed. R. Civ. P. 26(g)(2). 9 Here, based on Plaintiff’s uncontested arguments, the Court finds that Defendants have 10 failed to provide adequate certification that its discovery responses were complete and correct as 11 of the time made and, as discussed further below, that Defendants have failed to provide 12 discovery in a timely manner and have later located information Defendants initially indicated 13 was not available. Under these circumstances, it is appropriate to require Defendants to double- 14 check for responsive information in its possession, custody, or control, and provide a verification 15 that both explains the steps taken to conduct the double-check and certifies that all responsive 16 documents have been provided. See Duenez v. City of Manteca, No. 2:11-CV-1820, 2013 WL 17 684654, at *9 (E.D. Cal. Feb. 22, 2013) (“[C]ounsel for defendants admitted that they have had 18 past success in locating documents responsive to other discovery requests propounded by 19 plaintiffs after ‘double-checking’ their files. Accordingly, the City is directed to double-check its 20 files with respect to this request and to either produce any newly-found responsive documents or 21 submit an amended verification that documents responsive to this request do not exist.”). 22 The Court will therefore direct that Defendants, within forty-five days of the date this 23 order is entered, do the following as to each of Plaintiff’s discovery requests: (1) double-check for 24 information in its possession, custody, or control that is responsive to the discovery request; (2) 25 produce any newly-found responsive documents; and (3) submit a verification that both explains 26 the steps it took to conduct the double-check and certifies that all responsive documents have 27 been provided. The Court will also grant Plaintiff leave to request that Defendants provide a 28 declaration and/or appear for a Federal Rule of Civil Procedure 30(b)(6) deposition on efforts

10 1 Defendants have taken to search for information responsive to Plaintiff’s discovery request(s) and 2 will require Defendants to comply with such request(s). 3 Finally, to the extent Defendants have failed to disclose documents because such 4 documents are not subject to an existing protective order, the burden is on Defendants to 5 affirmatively seek a protective order. See Fed. R. Civ. P. 26(c). If Plaintiff will not stipulate to a 6 protective order, Defendants must file a motion for a protective order. See id. Defendants may not 7 simply withhold information responsive to a discovery request on the condition that Plaintiff 8 agree to enter into a protective order. Any request by Defendant for a protective order shall be 9 filed on an expedited basis. 10 C. “Document Dump” 11 1. Plaintiff’s Arguments 12 Plaintiff argues that he has no way of knowing whether all responsive documents have 13 been produced by Defendant City because of Defendant City’s November 27, 2019, unorganized 14 “document dump.” Specifically, Plaintiff argues, 15 Defendant City’s third and final ‘rolling’ production of internal affairs (“IA”) and administrative investigations came in an unorganized form, with 509 individual items 16 contain[ed] in a single folder, where all previous productions had been organized and segregated by Modesto Police Department’s assigned IA or investigation number. Even 17 Bates numbers applied to the documents are out-of-order, making manual segregation difficult. 18 (ECF No. 49 at 5.) Plaintiff provides the following table of the document description and Bates 19 numbers from this “document dump”: 20 Document Description Bates Nos. 21 Modesto Police Department IA15-011 3347-3514 22 Modesto Police Department IA16-048 3581-7643, 7689, 7694, 7695, 7723, 7730, 7731, 7760, 7790, 7791, 7821, 23 7822, 7842, 7864-7868, 7869-7917, 7918-7919 & 8801-9467 24 Modesto Police Department FD14-002 9773-9781, 9796-9968 & 9969-10157 25 Modesto Police Department FD15-002 11586-11784 & 11785-11974 Modesto Police Department FD15-003 12690-12857 & 12858-12946 26 Modesto Police Department FD15-004 13787-13980 & 13981-14136 Modesto Police Department FD16-001 14937-14987, 15589-15606 & 15607- 27 15877 28 Modesto Police Department FD16-003 16640-16662, 16663-16679 & 16680- 16707

11 1 Modesto Police Department FD16-005 17487-17488, 17490-17494, 17507- 17543, 18468-18525, 20962-20965, 2 20966-20994, 20995-21003, 21004- 3 21045 & 21053-21382 Modesto Police Department FD16-006 22214-22655 4 Modesto Police Department FD17-001 22730-22764, 22768-22805, 22892- 22893, 24188-24437 & 24438-24697 5 Modesto Police Department FD17-002 1639-1651 6

7 (ECF No. 49 at 5.)

8 2. Defendants’ Arguments

9 Defendants state they “have worked to efficiently to BATES stamp twelve prior in

10 custody deaths and/or prior shooting investigations. Defendants have indicated which documents

11 pertain to which investigation.” (ECF No. 49 at 16.)

12 3. Analysis

13 Federal Rule of Civil Procedure 34(b)(2)(E), which addresses the production of

14 documents or electronically stored information, provides that, unless otherwise stipulated or

15 ordered by the court, a “party must produce documents as they are kept in the usual course of

16 business or must organize and label them to correspond to the categories in the request.” Fed. R.

17 Civ. P. 34(b)(2)(E).

18 As noted, Defendants state only that they have indicated which documents pertain to

19 which investigation. They do not indicate that the production of the documents was as the

20 documents were kept in the usual course of business and, based on the uncontradicted information

21 provided by Plaintiff, the documents produced by Defendants on November 27, 2019, were also

22 not organized and labeled to correspond with the categories in Plaintiff’s discovery requests.

23 Thus, Defendants’ November 27, 2019, discovery response does not comply with Rule

24 34(b)(2)(E) and is accordingly deficient.

25 The Court will require Defendants to reproduce, within forty-five days of the date this

26 order is entered, Defendants’ November 27, 2019, discovery response in compliance with Rule

27 34(b)(2)(E), which requires that Defendants “must produce documents as they are kept in the

28 usual course of business or must organize and label them to correspond to the categories in the

12 1 request[s].” Fed. R. Civ. P. Rule 34(b)(2)(E). To the extent Plaintiff seeks to have Defendants 2 produce the documents in a manner other than as required by Rule 34(b)(2)(E), Plaintiff must 3 seek and obtain a stipulation from Defendants for such production. See id. 4 D. RPD No. 7 (Defendant Ramar’s Personnel Files) 5 1. Plaintiff’s Arguments 6 Plaintiff contends that he “is aware of at least two unproduced pages from within 7 Defendant City’s production of Defendant Ramar’s personnel file (Bates Nos. 1257-1508). “The 8 missing documents are pages one and two from a four-page 2017 performance evaluation of 9 Defendant Ramar, where only pages three and four were produced (Bates 1294-1295).” (ECF No. 10 49 at 6.) Plaintiff states that the missing documents are particularly relevant to this case “because 11 they cover the period during which the incident giving rise to this action occurred—i.e., 12 Defendant Ramar’s shooting Plaintiff on November 6, 2017.” (Id.) Plaintiff contends that on 13 January 3, 2020, after Plaintiff had requested the missing documents for several months and after 14 the filing of the motion to compel, Defendant City produced the declaration of Sgt. Christopher 15 Adams which stated the following: “I personally searched Sgt. Jerry Ramar’s personnel file. I 16 found the ‘Sergeant Performance Appraisal’ evaluation” but “I could not locate a page 1 or page 17 2 for the evaluation.” Plaintiff contends that this is not a sufficient response, and that the City was 18 required to provide an explanation of the search conducted with sufficient specificity to allow the 19 Court to determine whether the City made a reasonable inquiry and exercised due diligence. 20 “Simply searching Defendant Ramar’s personnel file is not a ‘reasonable inquiry,’ where the 21 missing documents may be found in some other location within Defendant City’s ‘possession, 22 custody, or control,’” such as “the computer or server on which the performance evaluation was 23 originally prepared and/or stored.” (ECF No. 49 at 6 (citations omitted).) 24 2. Defendants’ Arguments 25 Defendants state: “Defendants have nothing to add to Sgt. Adams’s declaration.” (ECF 26 No. 49 at 16.) 27 //// 28 ////

13 1 3. Analysis 2 “A party responding to a document request cannot furnish only that information within his 3 immediate knowledge or possession; he is under an affirmative duty to seek that information 4 reasonably available to him from his employees, agents, or others subject to his control.” Rogers, 5 288 F.R.D. at 485. “A party must make a reasonable inquiry to determine whether responsive 6 documents exist, and if they do not, the party should so state with sufficient specificity to allow 7 the Court to determine whether the party made a reasonable inquiry and exercised due diligence.” 8 Id. (citations and internal citation marks omitted). 9 Here, it is clear that there are documents missing from the production of Ramar’s 10 personnel file. Defendants state, through the declaration of Sgt. Christopher Adams, that they 11 have searched for the missing documents by searching Ramar’s personnel file itself. This is 12 insufficient. Defendants are under an affirmative duty to exercise due diligence and make a 13 reasonable inquiry to determine whether responsive documents exist. A search of Ramar’s 14 personnel file does not fulfill that duty. For example, as Plaintiff has suggested, the missing pages 15 may be located on a computer, server, or other location within Defendants’ possession, custody, 16 or control. 17 The Court will therefore require that Defendants, within forty-five days from the date this 18 order is entered, do the following as to the 2017 performance review of Defendant Ramar and any 19 other information responsive to Plaintiff’s Request for Production (“RPD”) No. 7: (1) double- 20 check for information in its possession, custody, or control that is responsive to this discovery 21 request, and specifically, search on the City’s computers, servers, and other locations within 22 Defendants’ possession, custody, or control; (2) produce any newly-found responsive documents; 23 and (3) submit a verification that both explains the steps taken to conduct the double-check and 24 certifies that all responsive documents have been provided. 25 E. RPD No. 14 (Defendant Ramar’s Prior Testimony) 26 1. Plaintiff’s Arguments 27 Plaintiff states his belief that the City has not produced all documents responsive to a 28 request for Ramar’s “testimony . . . provided in any civil action—including, but not limited to,

14 1 deposition testimony.” Plaintiff explains that the City has responded only that Ramar was 2 previously sued in Holcomb v. Ramar, Case 1:13-cv-01102-AWI-SKO, that the case was tried, 3 and, 4 [t]he trial resulted in a defense verdict. Meyers, Nave, Riback, Silver, & Wilson represented Jerry Ramar and the City of Modesto in the case. The trial attorney 5 was Blake Loebs who is deceased. [¶] In August 2019, Meyers, Nave Riback, Silver, & Wilson performed a search for prior testimony for Ramar for this case 6 and was unable to find any responsive documents. 7 (ECF No. 49 at 6 (citation omitted).) 8 Plaintiff contends that this response is not sufficient because it does not provide an 9 explanation of the search conducted with sufficient specificity to allow the Court to determine 10 whether the City made a reasonable inquiry and exercised due diligence. Specifically, “[s]imply 11 asking a firm that previously represented Defendant Ramar if it possessed any testimony is not a 12 ‘reasonable inquiry,’ where such testimony may be found in some other location within 13 Defendant City’s ‘possession, custody, or control,” such as through “the court reporting company 14 that transcribed Defendant Ramar’s testimony.” (ECF No. 49 at 6-7.) 15 2. Defendants’ Arguments 16 Defendants state: “To Defendants’ knowledge, this is not a live issue. Their prior 17 attorneys searched and found no responsive documents.” (ECF No. 49 at 16.) 18 3. Analysis 19 A party responding to a document request “cannot furnish only that information within his 20 immediate knowledge or possession; he is under an affirmative duty to seek that information 21 reasonably available to him from his employees, agents, or others subject to his control.” Rogers, 22 288 F.R.D. at 485. “A party must make a reasonable inquiry to determine whether responsive 23 documents exist, and if they do not, the party should so state with sufficient specificity to allow 24 the Court to determine whether the party made a reasonable inquiry and exercised due diligence.” 25 Id. (citations and internal quotation marks omitted). 26 Defendants indicate that they sought information from their prior attorneys as to one case 27 in which Ramar was a defendant, Holcomb v. Ramar, Case 1:13-cv-01102-AWI-SKO. 28 Defendants have not, however, described the inquiry and efforts Defendants made to

15 1 affirmatively seek information available to them from other sources, including their own records, 2 as to any prior testimony provided by Ramar in that prior case or any other case in which Ramar 3 was involved. 4 Turning to the case of Holcomb v. Ramar, Case 1:13-cv-01102-AWI-SKO, the Court 5 notes that judgment in that case was entered on August 21, 2017, following a jury trial. (See 6 Holcomb v. Ramar, ECF Nos. 188, 192.). Defendants represent that they reached out to the prior 7 attorneys in August 2019, just two years later, and that those prior attorneys indicate that they do 8 not have any information responsive to the request for prior testimony of Ramar. The Court finds 9 it highly unlikely that there is neither deposition nor trial testimony from Ramar from that prior 10 case. Thus, to the extent there is a case file from this prior case, that file is likely to contain at 11 least deposition testimony, if not trial testimony, from Ramar. 12 The California Rules of Professional Conduct do not appear to have a bright-line rule on 13 how long Defendants’ prior attorneys are required to maintain the file from this prior case. See 14 Cal. State Bar Formal Opinion No. 2001-157 (addressing ethical duties of attorney regarding 15 retention of former clients’ files, and explaining that there is “no shortcut, ‘bright line’ rule” for 16 determining how long items in a closed file must be maintained). However, unless there is an 17 agreement with the client on the disposition of papers in a closed file, the prior attorneys are 18 required to make reasonable efforts to obtain a client’s consent before destroying the items in the 19 file. Id. Thus, it appears likely that the prior attorneys would still have the file from the prior case, 20 which, as noted, concluded just two years prior to the purported search for Ramar’s testimony, or 21 that the prior attorneys would have obtained permission from Defendants, including Ramar, to 22 destroy the file from the prior case. 23 In light of the above, the Court finds Defendants’ response to RPD No. 14, seeking 24 Ramar’s former testimony, to be inadequate. The Court will therefore require that Defendants, 25 within forty-five days of the date this order is entered, do the following as to RPD No. 14: 26 (1) double-check for information in their possession, custody, or control that is responsive to this 27 discovery request, and specifically search the City’s computers, servers, archived documents, and 28 other locations within Defendants’ possession, custody, or control; (2) produce any responsive

16 1 documents; and (3) submit a verification that both explains the steps Defendants took to conduct 2 the double-check and certifies that all responsive documents have been provided. If information 3 responsive to RPD No. 14 is unavailable because the information has been destroyed by or with 4 the permission of Defendants, an explanation as to such destruction shall be included in the 5 verification. If former counsel for Defendants in Holcomb v. Ramar has indicated that responsive 6 information is not available, Defendants shall provide the name of the attorney who so indicated 7 along with an explanation from that attorney as to why the information is no longer available. 8 F. RPD No. 59 (Rodriguez v. City of Modesto, 1:10-cv-01370-LJO-MJS) and RPD No. 60 (Olvera v. City of Modesto, 1:11-cv-00540-AWI-GSA) 9 1. Plaintiff’s Arguments 10 Plaintiff states that in response to his requests for Monell discovery related to prior 11 litigation in Rodriguez v. City of Modesto, E.D. Cal. Case 1:10-cv-01370-LJO-MJS, and Olvera v. 12 City of Modesto, E.D. Cal. Case 1:11-cv-00540-AWI-GSA, the City responded that after “a 13 diligent and thorough search,” it found it “does not possess” responsive documents. Plaintiff 14 contends this is not sufficient because it does not provide an explanation of the search conducted 15 with sufficient specificity to allow the Court to determine whether the City made a reasonable 16 inquiry and exercised due diligence. Plaintiff also notes that Defendants are required to produce 17 documents in their “possession, custody, or control,” and not merely documents in their 18 “possession.” 19 2. Defendants’ Arguments 20 Defendants respond as to both of these requests as follows: 21 Modesto Police Department had no responsive records. At the November 1, 2019 22 informal discovery dispute telephone conference, Judge Grosjean requested that counsel for Defendants contact the prior attorneys who represented the City in this 23 case. Blake Loebs of Meyers Nave was the trial attorney on this case. He is now deceased. Myers Nave has searched for responsive documents. If responsive 24 documents exist, they will be produced. 25 (ECF No. 49 at 16-17.) 26 3. Analysis 27 A party responding to a document request “cannot furnish only that information within his 28 immediate knowledge or possession; he is under an affirmative duty to seek that information

17 1 reasonably available to him from his employees, agents, or others subject to his control.” Rogers, 2 288 F.R.D. at 485. “A party must make a reasonable inquiry to determine whether responsive 3 documents exist, and if they do not, the party should so state with sufficient specificity to allow 4 the Court to determine whether the party made a reasonable inquiry and exercised due diligence.” 5 Id. (citations and internal quotation marks omitted). 6 Defendants indicate that they sought information from their prior attorneys and that if 7 documents exist, they will be produced. The Court notes that Rodriguez v. City of Modesto, E.D. 8 Cal. Case 1:10-cv-01370-LJO-MJS, was dismissed by stipulation on July 27, 2015 (Rodriguez v. 9 City of Modesto, ECF No. 98); and that Olvera v. City of Modesto, E.D. Cal. Case 1:11-cv-00540- 10 AWI-GSA, was dismissed by stipulation on September 19, 2015 (Olvera v. City of Modesto, ECF 11 No. 67). As discussed above in relation to RPD No.14, it appears likely that the former attorneys 12 would still have these case files or would have obtained permission from Defendant City to 13 destroy the files. 14 In light of the above, the Court finds Defendants’ response to RPD Nos. 59 and 60, 15 seeking Monell discovery related to prior litigation in Rodriguez v. City of Modesto, E.D. Cal. 16 Case 1:10-cv-01370-LJO-MJS, and Olvera v. City of Modesto, E.D. Cal. Case 1:11-cv-00540- 17 AWI-GSA, to be inadequate. The Court will therefore require that Defendants, within forty-five 18 days from the date this order is entered, do the following as to RPD Nos. 59 and 60: (1) double- 19 check for information in Defendants’ possession, custody, or control that is responsive to these 20 discovery requests, and specifically search the City’s computers, servers, archived documents, 21 and other locations within Defendants’ possession, custody, or control; (2) produce any 22 responsive documents; and (3) submit a verification that both explains the steps Defendants took 23 to conduct the double-check and certifies that all responsive documents have been provided. If 24 information responsive to RPD Nos. 59 and 60 is unavailable because the information has been 25 destroyed by or with the permission of Defendants, an explanation as to such destruction shall be 26 included in the verification. If former counsel for Defendants has indicated that responsive 27 information is not available, Defendants shall provide the name of the attorney who so indicated 28 along with an explanation from that attorney as to why the information is no longer available.

18 1 G. RPD No. 61 (Reed v. City of Modesto, 1:11-cv-01083-AWI-GSA) 2 1. Plaintiff’s Arguments 3 Plaintiff states that in response to his request for Monell discovery related to prior 4 litigation in Reed v. City of Modesto, E.D. Cal. Case 1:11-cv-01083-AWI-GSA, the City 5 responded that after “a diligent and thorough search,” it found it “does not possess” responsive 6 documents. “However, on January 24, 2020, Defendant City’s counsel acknowledged—for the 7 very first time—that responsive documents do exist. However, to date, Defendant City has 8 refused to produce the documents unless and until Plaintiff agrees to a stipulated protective order 9 covering the documents. Plaintiff refuses because Defendant City failed timely to move for a 10 protective order and, in any event, the documents are not subject to protection under Fed. R. Civ. 11 P. 26(c).” (ECF No. 49 at 7.) 12 a. Defendants’ Arguments 13 Defendants respond: 14 Modesto Police Department had no responsive records. At the November 1, 2019 informal discovery dispute telephone conference, Judge Grosjean requested that 15 counsel for Defendants contact the prior attorneys who represented the City. Defense counsel contacted Susan Coleman, a private attorney who represented the 16 City. Ms. Coleman sent the IA for the incident, which has been BATES stamped and has been offered to be produced pursuant to a protective order. 17

18 (ECF No. 49 at 17.) 19 b. Analysis 20 Defendants’ response is insufficient. Defendants must affirmatively seek a protective 21 order. See Fed. R. Civ. P. 26(c). If Plaintiff will not stipulate to a protective order, Defendants 22 must file a motion for a protective order. Defendants may not simply withhold information 23 responsive to a discovery request on the condition that Plaintiff agree to enter into a protective 24 order. 25 The Court will direct that final production of all documents responsive to RPD No. 61 26 shall be completed within forty-five days of the date this order is entered. If Defendants have not 27 provided documents responsive to RPD No. 61 within forty-five days of the date this order is 28 entered, unless this deadline is extended by the Court in response to a motion, the Court will

19 1 sanction Defendants $100 for each day the responsive documents are impermissibly withheld. If 2 Defendants believe a protective order is needed, and are unable to obtain a stipulation from 3 Plaintiff, they must file an expedited motion seeking a protective order. 4 H. RPD No. 62 (Mugrauer v. City of Modesto, 1:16-cv-00480-AWI-SAB) and RPD No. 63 (Schmidt v. City of Modesto, 1:17-cv-01411-DAD-MJS) 5

6 1. Plaintiff’s Arguments 7 Plaintiff states that he requested Monell discovery related to prior litigation in Mugrauer 8 v. City of Modesto, E.D. Cal. Case No. 1:16-cv-00480-AWI-SAB and Schmidt v. City of Modesto, 9 E.D. Cal. Case No. 1:17-cv-01411-DAD-MJS. In response, Defendant City stated that it would 10 produce the “Modesto Police Department’s investigation of this incident in its possession,” but 11 “the documents were produced in the unorganized ‘document dump,’ described above.” (ECF No. 12 49 at 7-8.) “Further, production of only the ‘Modesto Police Department’s investigation of this 13 incident’ is insufficient, where several other documents related to this incident and litigation must 14 exist—e.g., discovery requests and responses, testimony, etc.” (Id.) 15 2. Defendants’ Arguments 16 Defendant responds as follows: 17 Modesto Police Department had no responsive records. At the November 1, 2019 informal discovery dispute telephone conference, Judge Grosjean requested that 18 counsel for Defendants contact the prior attorneys who represented the City in this case. Blake Loebs of Meyers Nave was the trial attorney on this case. He is now 19 deceased. Myers Nave has searched for responsive documents. If responsive documents exist, they will be produced. 20

21 (ECF No. 49 at 17.) 22 3. Analysis 23 A party responding to a document request “cannot furnish only that information within his 24 immediate knowledge or possession; he is under an affirmative duty to seek that information 25 reasonably available to him from his employees, agents, or others subject to his control.” Rogers, 26 288 F.R.D. at 485. “A party must make a reasonable inquiry to determine whether responsive 27 documents exist, and if they do not, the party should so state with sufficient specificity to allow 28 the Court to determine whether the party made a reasonable inquiry and exercised due diligence.”

20 1 Id. (citations and internal quotation marks omitted). 2 Defendants indicate that they sought information from their prior attorneys and that if 3 documents exist, they will be produced. Defendants have not, however, described the inquiry and 4 efforts Defendants made to affirmatively seek information available to them from other sources, 5 including their own records. 6 As to Defendants’ attempts to obtain the information from their prior attorneys, the Court 7 notes that Mugrauer v. City of Modesto, E.D. Cal. Case No. 1:16-cv-00480-AWI-SAB, was 8 dismissed by stipulation of the parties on May 28, 2017 (Mugrauer v. City of Modesto, ECF No. 9 37), and Schmidt v. City of Modesto, E.D. Cal. Case No. 1:17-cv-01411-DAD-MJ, was dismissed 10 by stipulation of the parties on March 28, 2018 (Schmidt v. City of Modesto, ECF No. 27). As 11 discussed above in relation to RPD No.14, it appears likely that the former attorneys would still 12 have the files for these cases or would have obtained permission from Defendant City to destroy 13 the files. Thus, the Court finds Defendants’ responses to RPD Nos. 62 and 63, seeking Monell 14 discovery related to prior litigation in Mugrauer v. City of Modesto, E.D. Cal. Case No. 1:16-cv- 15 00480-AWI-SAB, and Schmidt v. City of Modesto, E.D. Cal. Case No. 1:17-cv-01411-DAD- 16 MJS, to be inadequate. 17 The Court will therefore require that Defendants, within forty-five days of the date this 18 order is entered, do the following as to RPD Nos. 62 and 63: (1) double-check for information in 19 Defendants’ possession, custody, or control that is responsive to these discovery requests, and 20 specifically search the City’s computers, servers, archived documents, and other locations within 21 Defendants’ possession, custody, or control; (2) produce any responsive documents; and (3) 22 submit a verification that both explains the steps Defendants took to conduct the double-check 23 and certifies that all responsive documents have been provided. If information responsive to RPD 24 Nos. 62 and 63 is unavailable because the information has been destroyed by or with the 25 permission of Defendants, an explanation as to such destruction shall be included in the 26 verification. If former counsel for Defendants has indicated that responsive information is not 27 available, Defendants shall provide the name of the attorney who so indicated along with an 28 explanation from that attorney as to why the information is no longer available.

21 1 III. SPOLIATION OF ESI 2 As noted previously, Plaintiff submitted a citizen complaint form to the MPD alleging 3 misconduct in connection with the November 6, 2017, officer-involved shooting of Plaintiff. On 4 December 18, 2018, the MPD Shooting Review Board concluded that Defendant Ramar’s 5 discharge of his firearm against Plaintiff was “within policy,” and, as a result that the allegations 6 in Plaintiff’s citizen complaint form were “Unfounded.” On January 29, 2019, Plaintiff filed the 7 present action, and the Modesto Police Department was served on January 31, 2019. 8 On May 15, 2019, Plaintiff sought electronically stored information (“ESI”) from the City 9 in connection with the shooting of Plaintiff, including (1) documents “sent by” Officer Ramar, 10 including “statements, correspondence, reports, memos, and emails”; (2) documents “received 11 by” Ramar, including “statements, correspondence, reports, memos, and e-mails”; “text 12 messages/short message service (‘SMS’) sent by” Ramar; and (4) “text messages/short message 13 service (‘SMS’) received by” Ramar. (ECF No. 46 at 115-16.) 14 On August 30, 2019, the City’s counsel informed Plaintiff’s counsel, “Ramar returned his 15 work cell phone when he resigned,” “[n]o data was attempted to be recovered from it,” and the 16 MPD “no longer has the cell phone.” (ECF No. 46 at 116.) On September 18, 2019, Plaintiff’s 17 counsel requested an explanation as to “why and how Defendant City disposed [of Ramar’s cell 18 phone] which could have been relevant to this action, while this action was pending.” (Id.) On 19 September 24, 2019, Plaintiff’s counsel and Defendants’ counsel had a telephonic conference 20 during which Defendants’ counsel agreed to provide, by September 26, 2019, a declaration of the 21 person most knowledgeable about the collection and non-retention of Ramar’s cell phone. (Id.) 22 On September 26, 2019, Defendants’ counsel stated that Defendant City would produce a 23 declaration concerning the spoliation of Ramar’s cell phone “in two weeks.” (Id.) 24 On November 15, 2019, Defendants’ counsel conceded that he had still not produced a 25 declaration regarding the spoliation of Ramar’s cell phone, and stated that a declaration would be 26 provided, but failed to specify a date for such production. No declaration had been provided by 27 Plaintiff as of the date Plaintiff filed the motion to compel. (Id.) 28 On January 9, 2020, the City informally produced by email a declaration regarding the

22 1 cell phone. In this declaration, Lt. Tait explained that (1) on March 11, 2019, Ramar returned the 2 cell phone he had been assigned by the MPD after Ramar resigned his employment; (2) later on 3 March 11, 2019, the MPD reset Ramar’s cell phone “to factory setting and erased of all contents”; 4 (3) Ramar’s cell phone was then returned to AT&T; (4) on November 21, 2019, Cpt. Gundlach 5 had Ramar’s cell phone “returned” to the MPD; (5) Ramar’s cell phone was stored at MPD until 6 January 5, 2020, when it was “booked [] into evidence.” (Id.) 7 A. Plaintiff’s Arguments 8 Plaintiff argues that Defendants have lost the ESI on Ramar’s cell phone and that this loss 9 is due to the failure of Defendants to take reasonable steps to preserve that information. Plaintiff 10 points out that litigation was initiated in this case on January 29, 2019; that the MPD was served 11 on January 31, 2019; that on March 11, 2019, Ramar returned the cell phone that had been 12 assigned to him by the MPD, and that, later that same day, the MPD reset the cell phone to 13 factory settings and “erased all contents” on the cell phone, resulting in the loss of all of the ESI 14 on that phone. 15 Plaintiff also argues that the loss of this information is prejudicial. Plaintiff states that he 16 does not know the contents of the ESI that was destroyed because it was destroyed before 17 Plaintiff had a chance to obtain it. However, the ESI may have included information admissible at 18 trial, and the fact that the ESI of a key Defendant witness has been destroyed permits the 19 reasonable inference that Plaintiff has been prejudiced by the City’s spoliation. (ECF No. 46 at 20 117.) 21 Plaintiff seeks sanctions for the spoliation of the ESI from the cell phone but does not 22 specify what sanctions he seeks. (ECF No. 46 at 117-18.) 23 B. Defendants’ Arguments 24 Defendants state that they have provided the declaration of Lt. Aaron Tait regarding the 25 cell phone, but do not otherwise provide any argument. (ECF No. 46 at 118 (citing to ECF No. 26 46-2 at 8-14.) 27 The declaration of Lt. Tait states that when the MPD issues a cell phone to an officer for 28 the first time, the cell phone contains no information in the contents or settings. (ECF No. 46-2 at

23 1 8.) When an officer returns a cell phone to the MPD, the cell phone may be reassigned to another 2 officer and prior to that reassignment, the MPD erases the cell phone of all information in its 3 contents and settings. (Id.) MPD issued Ramar an Apple iPhone on October 30, 2015, and Ramar 4 returned the cell phone to the MPD on March 11, 2019. (Id. at 9.) On March 11, 2019, the MPD 5 reset the cell phone to factory settings and erased all content. On March 19, 2019, the same cell 6 phone was reassigned to another officer. The cell phone was then returned to AT&T on an 7 unspecified date. (Id.) On November 21, 2019, Captain Gundlach had the cell phone returned to 8 the MPD. Between December 20, 2019, and December 22, 2019, Captain Gundlach had the cell 9 phone placed in the office of Lt. Tait. On December 23, 2019, Lt. Tait located the cell phone on 10 his desk. Lt. Tait stored the cell phone in his office until January 5, 2020, when he booked it into 11 evidence. (Id.) 12 C. Analysis 13 The spoliation of ESI is covered by Federal Rule of Civil Procedure 37(e), which 14 provides: 15 (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of 16 litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: 17 (1) upon finding prejudice to another party from loss of the information, may 18 order measures no greater than necessary to cure the prejudice; or 19 (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: 20 (A) presume that the lost information was unfavorable to the party; 21 (B) instruct the jury that it may or must presume the information was 22 unfavorable to the party; or 23 (C) dismiss the action or enter a default judgment. 24 Fed. R. Civ. P. 37(e). 25 Plaintiff argues, and Defendants do not dispute, that Ramar’s cell phone had ESI that 26 should have been preserved. Ramar is alleged to be the officer who shot Plaintiff during the 27 incident at issue in this case. Thus, the cell phone that MPD issued to Ramar and that Ramar was 28 using at the time of and following the incident may have had relevant ESI.

24 1 Plaintiff also argues, and Defendants do not dispute, that the ESI on the cell phone has 2 been lost and that the ESI cannot be restored or replaced through additional discovery. Plaintiff 3 contends that Defendants failed to take reasonable steps to preserve the ESI on this cell phone. 4 Defendants have not responded to this contention. Indeed, the declaration of Lt. Tate 5 demonstrates that absolutely no steps were taken by Defendants to preserve the ESI on the cell 6 phone, even though litigation was pending by the time the cell phone was erased and reset to 7 factory settings. 8 The question that remains is exactly why the City/MPD did not preserve the ESI from 9 Ramar’s cell phone. 10 “Although the Ninth Circuit has not precisely defined when the duty to preserve is 11 triggered, trial courts in this Circuit generally agree [it is triggered] ‘[a]s soon as a potential claim 12 is identified.’” Apple Inc. v. Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976, 991 (N.D. Cal. 2012) 13 (quoting In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006); other 14 citations omitted). A party must preserve evidence it knows or should know is relevant to a claim 15 or defense of any party, or that may lead to the discovery of relevant evidence. This duty to 16 preserve arises not only during litigation, but also during the period before litigation when a party 17 should reasonably know that evidence may be relevant to anticipated litigation. Compass Bank v. 18 Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 (S.D. Cal. 2015) (citations 19 omitted); see U.S. v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (routine 20 destruction constitutes spoliation where party “had ‘some notice that the documents were 21 potentially relevant’ to the litigation before they were destroyed”) (citation omitted). 22 “Once the duty to preserve attaches, a party must suspend any existing policies related to 23 deleting or destroying files and preserve all relevant documents related to the litigation,” and 24 courts may sanction parties responsible for spoliation of evidence. Compass Bank, 104 F. Supp. 25 3d at 1052 (citations and internal quotation marks omitted); In re Napster, Inc., 462 F. Supp. 2d at 26 1066, 1070. Making “some efforts” to preserve documents does not meet this obligation; 27 implementation of a full litigation hold to ensure preservation of relevant documents is required. 28 Apple Inc., 888 F. Supp. 2d at 991-92; see Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir.

25 1 2006) (“A party’s destruction of evidence qualifies as willful spoliation if the party has ‘some 2 notice that the documents were potentially relevant to the litigation before they were destroyed.’” 3 (citation omitted)). 4 Here, Defendants knew or should have known of a potential claim against them in 5 November 2017, after the shooting occurred. To the extent there was any doubt regarding a 6 potential claim, that doubt was eliminated in June 2018, when Plaintiff submitted a citizen 7 complaint to the MPD, and was again eliminated in January 2019, when Plaintiff filed the present 8 action. Yet, there is no indication that the City, MPD, Ramar, or any other defendant issued a 9 litigation hold or otherwise sought to preserve relevant evidence, including the ESI on the cell 10 phone that Ramar had been issued by MPD, that Ramar was using at the time of the shooting, and 11 that Ramar continued to use until he resigned in March 2019. There also is no indication that 12 counsel for Defendants, who first entered an appearance on February 8, 2019, issued a litigation 13 hold or otherwise sought to preserve the cell phone or ESI on that phone 14 Despite the pending litigation, when Ramar resigned in March 2019, the cell phone and 15 ESI contained thereon were completely erased. That this may have been done pursuant to MPD’s 16 existing policies does not excuse the spoliation of the evidence. See Compass Bank, 104 F. Supp. 17 3d at 1052; In re Napster, Inc., 462 F. Supp. 2d at 1066, 1070 (once duty to preserve attaches, 18 litigant or potential litigant is required to suspend any existing policies related to deleting or 19 destroying evidence and preserve all relevant evidence related to the litigation). 20 Based on the foregoing, the Court finds spoliation by Defendants of the ESI from the cell 21 phone that had been issued to Ramar. The Court also notes that Defendants City of Modesto and 22 the Modesto Police Department have been subject to multiple civil actions in the past and thus are 23 well aware of their obligations to issue a litigation hold and preserve evidence. 24 As to prejudice, Plaintiff askes the Court to presume that the lost ESI from the cell phone 25 was prejudicial because the ESI was destroyed before Plaintiff had a chance to obtain and review 26 it. “In the Ninth Circuit, spoliation of evidence raises a presumption that the destroyed evidence 27 goes to the merits of the case, and further, that such evidence was adverse to the party that 28 destroyed it.” Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 993 (N.D. Cal. 2012)

26 1 (collecting cases). The Court agrees that a presumption of prejudice is appropriate here. Again, 2 the lost ESI was from the cell phone of Ramar, who is alleged to have shot Plaintiff multiple 3 times during the incident at issue in this case. The cell phone may have thus contained relevant 4 information, including communications by and to Ramar related to the shooting incident, and this 5 information may have, in turn, been admissible at trial for purposes such as impeachment. 6 The Court therefore finds both spoliation of ESI from the cell phone that had been issued 7 to Ramar, and prejudice resulting from the loss of that ESI. As to the measures necessary to cure 8 the prejudice resulting from the loss of this ESI, the Court leaves that determination for the trial 9 judge, but notes that Plaintiff may want to request, for example, an instruction to the jury, further 10 exclusion of evidence, or testimony to the jury regarding the spoliation. 11 VII. MOTION TO REVOKE STIPULATED PROTECTIVE ORDERS 12 A. Plaintiffs Arguments 13 Plaintiff seeks to revoke the two stipulated protective orders that have been entered in this 14 case, raising several different arguments in support of revocation. 15 First, Plaintiff argues that Defendants did not timely move for a protective order and 16 instead demanded that Plaintiff stipulate to entry of a protective order as a condition of receiving 17 responsive discovery. (ECF No. 49 at 8.) Plaintiff notes that although he stipulated to entry of the 18 protective orders, in doing so he reserved this objection. (Id.) 19 Second, Plaintiff argues that Defendant City has improperly utilized the protective orders 20 to designate documents on a blanket-wide basis. (ECF No. 49 at 9.) 21 Third, Plaintiff argues that it has complied with the challenge procedures set out in the 22 stipulated protective orders by providing Defendants with detailed correspondence explaining the 23 basis for his challenge that confidentiality designations were not proper. Plaintiff contends that 24 Defendants have, however, failed to comply with the challenge procedures set out in the 25 stipulated protective orders and have, instead, stated only that they “disagree” and that it “will 26 provide our analysis for our position in the moving papers. . . .” (ECF No. 49 at 9.) 27 Finally, Plaintiff argues that Defendants have failed to demonstrate the good cause 28 required to designate documents subject to a protective order. (ECF No. 49 at 9.) Specifically,

27 1 Plaintiff contends that Defendants have failed to demonstrate a “particularized harm”; that the 2 balancing of interests favors disclosure; and that, even if a protective order is appropriate, it 3 should only cover narrow limited categories as opposed to the entire documents designated by 4 Defendants. (ECF No. 49 at 9-13.) 5 B. Defendants’ Arguments 6 Defendants request that the Court retain the confidentiality of the documents disclosed 7 pursuant to the protective orders. Defendants argue that they have “produced thousands of pages 8 of confidential documents in this matter,” that the first batch of confidential documents was 9 produced in reliance on “Stipulated Protective Order Re: IA Investigations,” filed on September 10 10, 2019; and that “the second batch of confidential documents were produced in reliance on this 11 Court’s Minute Order of November 22, 2019 (Docket No. 41).” Finally, Defendants argue that 12 “Defendants and the community of Modesto will be harmed by the public dissemination of the 13 documents” covered by the protective orders, and that “[n]either Plaintiff nor the public will 14 suffer harm if the documents remain confidential.” 15 C. Analysis 16 Federal Rule of Civil Procedure 26(c), which sets forth the grounds for protective orders, 17 “was enacted as a safeguard for the protection of parties and witnesses in view of the broad 18 discovery rights authorized in Rule 26(b).” United States v. Columbia Broad. Sys., Inc., 666 F.2d 19 364, 368-69 (9th Cir. 1982). “Generally, the public can gain access to litigation documents and 20 information produced during discovery unless the party opposing disclosure shows ‘good cause’ 21 why a protective order is necessary.” Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 22 F.3d 1206, 1210 (9th Cir. 2002). To satisfy this “good cause” standard, the party seeking a 23 protective order must explain the specific prejudice or harm that will result if the information is 24 not protected. Id. at 1211. 25 As Plaintiff points out, Defendants have not moved for a protective order. Instead, the 26 parties have entered into two stipulated protective orders. However, in entering these protective 27 orders, Plaintiff reserved the right to raise an objection to the timeliness of Defendants’ seeking of 28 the protective orders. Specifically, Plaintiff argues that Defendant City did not timely move for a

28 1 protective order and instead demanded that Plaintiff stipulate to entry of a protective order as a 2 condition of receiving responsive discovery. (ECF No. 49 at 8.) 3 The Court finds Defendants’ approach of withholding discovery unless Plaintiff agreed to 4 a stipulated protective order to be inappropriate and not well-taken. Defendants should have, 5 instead, sought to obtain a stipulation from Plaintiff for entry of a protective order and then, if 6 unsuccessful, moved the Court for entry of a protective order pursuant to Federal Rule of Civil 7 Procedure 26(c). The Court does not, however, find that Defendants’ approach warrants 8 revocation of the stipulated protective orders that have been entered in this case. Rule 26(c) does 9 not impose a time constraint on requests for protective orders and anticipates that a discovery 10 request may already be pending when a request for a protective order is sought. See Fed. R. Civ. 11 P. 26(c) (“A party or any person from whom discovery is sought may move for a protective order 12 in the court where the action is pending.”). Thus, the timing of Defendants’ request for a 13 stipulated protective order does not, by itself, warrant revocation of the protective orders that are 14 already in place. 15 Plaintiff also argues that Defendants have improperly utilized the protective orders to 16 designate documents on a blanket-wide basis. (ECF No. 49 at 9.) “Blanket protective orders are 17 routinely entered in civil litigation, generally at the joint request of the parties where discovery 18 involves confidential information,” and are intended “to facilitate the exchange of discovery 19 documents. [Blanket protective orders] make no findings that a particular document is 20 confidential or that a document’s disclosure would cause harm.” Acosta v. Heritage, 332 F.R.D. 21 347, 349 (D. Haw. 2019). Thus, that blanket protective orders have been entered and/or that 22 Defendants are making blanket designations thereunder do not provide a basis for revoking the 23 protective orders. 24 Plaintiff argues that it has complied with the challenge procedures set out in the stipulated 25 protective orders by providing Defendant City with detailed correspondence explaining the basis 26 for his challenge to Defendants’ confidentiality designations. Plaintiff contends that Defendant 27 City has, however, failed to comply with the challenge procedures and has, instead, stated only 28 that it “disagrees” and that it “will provide our analysis for our position in the moving

29 1 papers. . . .” (ECF No. 49 at 9.) The Court does not find Defendants’ purported failures to comply 2 with the challenge procedures to be a sufficient reason to revoke the protective orders. 3 Finally, Plaintiff argues that Defendants have failed to demonstrate the good cause 4 required to designate documents subject to a protective order. (ECF No. 49 at 9.) Specifically, 5 Plaintiff contends that Defendants have failed to demonstrate a “particularized harm”; that the 6 balancing of interests favors disclosure; and that, even if a protective order is appropriate, it 7 should only cover narrow limited categories as opposed to the entire documents designated by the 8 City. (ECF No. 49 at 9-13.) 9 The Court previously granted Plaintiff permission to file a motion challenging designation 10 of particular IA documents as confidential. (ECF No. 41.) However, Plaintiff appears to, instead, 11 be raising a general challenge to Defendants’ designation of officer personnel files, including IA 12 investigation files, as protected under Federal Rule of Civil Procedure 26(c). All of this 13 information has already been disclosed to Plaintiff subject to the protective order. Thus, 14 disclosure to Plaintiff is not at issue here. Instead, the issue is whether this information should be 15 disclosed to the public. Resolution of this issue will not result in, and does not support, wholesale 16 revocation of the stipulated protective orders. Accordingly, to the extent Plaintiff relies on this 17 issue to support revocation of the stipulated protective orders, that reliance is misplaced. 18 The Court will deny Plaintiff’s request to revoke the stipulated protective orders. 19 VIII. MOTION FOR PUBLIC DISCLOSURE OF OFFICER PERSONNEL AND IA FILES 20

21 Plaintiff seeks an order allowing disclosure to the public of officer personnel files,

22 including IA files, that are currently deemed confidential under the stipulated protective orders.

23 “Historically, courts have ‘recognize[d] a general right to inspect and copy public records

24 and documents, including judicial records and documents.” Oliner v. Kontrabecki, 745 F.3d 1024,

25 1025 (9th Cir. 2014) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)).

26 “[J]udicial records are public documents almost by definition, and the public is entitled to access

27 by default.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006). This

28 “federal common law right of access” to court documents generally extends to “all information

30 1 filed with the court,” and “creates a strong presumption in favor of access to judicial documents 2 which can be overcome only by showing sufficiently important countervailing interests.” Phillips 3 ex. Rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002) (citations and 4 quotation marks omitted). 5 Here, Defendants claim the officer personnel files, including the IA files, are subject to the 6 official information privilege. 7 The “common law governmental privilege (encompassing and referred to sometimes as 8 the official or state secret privilege) . . . is only a qualified privilege, contingent upon the 9 competing interests of the requesting litigant and subject to disclosure. . . .” Kerr v. U.S. Dist. Ct. 10 for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The Ninth 11 Circuit has since followed Kerr in requiring in camera review and a balancing of interests in 12 ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. 13 Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we 14 recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims 15 of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 16 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended 17 on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (“Government 18 personnel files are considered official information. To determine whether the information sought 19 is privileged, courts must weigh the potential benefits of disclosure against the potential 20 disadvantages. If the latter is greater, the privilege bars discovery.”) (internal citations omitted). 21 However, under California Penal Code § 832.7, effective January 1, 2019, certain peace 22 officer personnel records are no longer confidential and are to be made available for public 23 inspection. Personnel records disclosable to the public include those records relating to the report, 24 investigation, or findings of “(i) An incident involving the discharge of a firearm at a person by a 25 peace officer or custodial officer”; or “(ii) An incident in which the use of force by a peace officer 26 or custodial officer against a person resulted in death, or in great bodily injury.” Cal. Penal Code 27 § 832.7(b)(1)(A). Also disclosable to the public are personnel records, 28 relating to an incident in which a sustained finding was made by any law

31 1 enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a 2 crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any 3 sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence. 4

5 Cal. Penal Code § 832.7(b)(1)(C).

6 The types of records subject to disclosure under § 832.7(b)(1) include,

7 all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for 8 review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, 9 or whether the officer's action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or 10 corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any 11 letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final 12 imposition of discipline or other documentation reflecting implementation of corrective action. 13

14 Cal. Penal Code § 832.7(b)(2).

15 “If an investigation or incident involves multiple officers, information about

16 allegations of misconduct by, or the analysis or disposition of an investigation of, an

17 officer shall not be released pursuant to subparagraph (B) or (C) of paragraph (1), unless

18 it relates to a sustained finding against that officer.” Cal. Penal Code § 832.7(b)(4).

19 “However, factual information about that action of an officer during an incident, or the

20 statements of an officer about an incident, shall be released if they are relevant to a

21 sustained finding against another officer that is subject to release pursuant to

22 subparagraph (B) or (C) of paragraph (1).” Id. Further, prior to disclosure of personnel

23 records, certain information must be redacted. See Cal. Penal Code § 832.7(b)(5). There

24 are also some exceptions to the disclosure requirement, including, for example, when

25 there are pending related criminal charges. See, e.g., Cal. Penal Code § 832.7(b)(6)-(8).

26 Here, Defendants argue that public disclosure of officer personnel files, including the IA

27 investigation files, would violate the privacy interests of defendant officers as well as the privacy

28 interests of non-defendant officers, witnesses, victims, and other complainants. Defendants have

32 1 also submitted evidence that public disclosure of the IA files would negatively impact future IA 2 investigations, including the willingness of witnesses and victims to cooperate in future 3 investigations, and the morale and privacy interests of the officers named in the investigations. 4 Defendants have not, however, addressed the applicability of California Penal Code 5 § 832.7 or explained why the personnel and IA files are not subject to disclosure under this 6 provision, with appropriate redactions. 7 Plaintiff also does not address the applicability of California Penal Code § 832.7, but 8 instead merely seeks a broad ruling from the Court that all of the personnel files, including the IA 9 files, should be disclosed to the public. Plaintiff contends that any privacy interest in these files is 10 outweighed by the presumption of public access. 11 Plaintiff cites to the case of Rodrique v. County of Sacramento, E.D. Cal. Case No. 2:17- 12 cv-02698-WBS-EFB, stating that this case is instructive. (ECF No. 49 at 10.) Specifically, 13 Plaintiff states that after the Rodrique case was settled, the plaintiff’s counsel in that case 14 “successfully obtained the release of the [IA] documents from the terms of the stipulated 15 protective order.” (Id.) However, a review of the orders issued in the Rodrique case demonstrates 16 that the Rodrique court rejected the challenge to the protective order’s designation of documents 17 as “confidential,” and ordered the plaintiff in that case to comply with the provisions of the 18 protective order, which required that the plaintiff either destroy or return the confidential 19 documents disclosed under the protective order. See Rodrique, Order After Hearing (Aug. 6, 20 2019) (Rodrique ECF No. 58). A stipulated order was later entered in the Rodrique case that 21 allowed intervenor The Sacramento Bee to have access to and publish a one-page high-level 22 summary of use-of-force incidents. However, this high-level summary provided only the date of 23 the incidents, the IA numbers, the alleged injuries, in a few instances the names of the involved 24 officer(s), the finding of the IA investigations, and the discipline imposed in those investigations 25 where the charge of excessive force was sustained. (See Rodrique ECF No. 74 (Stipulation and 26 Order Modifying Protective Order (entered Oct. 16, 2019); Rodrique ECF No. 50-15 (one-page 27 summary).) The stipulated order did not allow release of entire IA files. 28 Plaintiff also cites Macias v. Cleaver, No. 1:13-CV-01819-BAM, 2016 WL 3549257, at

33 1 *4-*6 (E.D. Cal. June 30, 2016). In that case, the court allowed public disclosure of IA 2 investigation reports where those reports determined that the defendant officer had engaged in 3 misconduct and the investigation resulted in a recommendation to terminate the defendant officer. 4 Id. In allowing this disclosure, the court found that the defendants had failed to provide specific 5 facts demonstrating compelling reasons that overcame the presumption of public access. Id. The 6 court ordered the IA investigation reports unsealed, requiring only limited redactions to protect 7 privacy interests. Id. at *6. Thus, the disclosure in Macias was only of IA investigations in which 8 the officer was found to have engaged in misconduct and resulted in a recommendation that the 9 officer be terminated. 10 Here, the Court cannot determine, based on the information currently before it, whether 11 the subject personnel and IA files are subject to public disclosure under Cal. Penal. Code 832.7. 12 Further, even if the files are not subject to disclosure under § 832.7, the information before the 13 Court is insufficient for the Court to determine whether there is a compelling reason to keep the 14 files confidential. 15 The Court will overrule Defendants’ objections to the public disclosure of these files 16 based only on the official information privilege. The Court will, however, grant Defendants leave 17 to file, within forty-five days of the date this order is entered, a motion seeking to keep specific 18 officer personnel and IA files confidential and/or proposing redactions to such files prior to public 19 disclosure. Defendants shall also, in conjunction with the filing of such motion, submit for in 20 camera review the documents Defendants seek to keep confidential. Plaintiff may file an 21 opposition within fourteen days following the filing of Defendants’ motion. The Court will 22 require the parties to maintain the confidentiality of the files until said motion has been resolved 23 by the Court. In the event Defendants fail to timely file a motion seeking to keep specific officer 24 personnel and IA files confidential, the documents may be disclosed to the public, with such 25 disclosure to be made in compliance with the redaction and other requirements of state and 26 federal law, including California Penal Code § 832.7. 27 //// 28 ////

34 1 IX. MOTION FOR AN AWARD OF EXPENSES 2 Federal Rule of Civil Procedure 37 provides that if a motion to compel is granted, or if the 3 disclosures or requested discovery is provided after the filing of the motion, “the court must, after 4 giving an opportunity to be heard, require the party or deponent whose conduct necessitated the 5 motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable 6 expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). 7 However, the court “must not order this payment if: (i) the movant filed the motion before 8 attempting in good faith to obtain the disclosure or discovery without court action; (ii) the 9 opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other 10 circumstances make an award of expenses unjust.” 11 Here, Plaintiff seeks an award of expenses incurred in bringing the motion to compel. 12 (ECF No. 49 at 13-15.) In support, Plaintiff contends that Defendants “interposed numerous 13 unsupported, unexplained, and generalized boilerplate objections in violation of Fed. R. Civ. P. 14 26(g)”; withheld responses without seeking a protective order; did not timely respond to 15 Plaintiff’s discovery requests and instead produced documents on a rolling basis (over Plaintiff’s 16 objections); and only produced responsive documents after it became clear that they would be 17 compelled to do so. (Id.) 18 Defendants do not deny any of Plaintiff’s contentions, stating only that “Defendants 19 recognize this court’s inherent power and authority to award expenses, attorney’s fees, and 20 sanction parties and attorneys. Defendants respectfully request that this court not award[] any 21 expenses, attorney’s fees, or sanctions.” (ECF No. 49 at 27.) 22 As set forth above, the Court is granting Plaintiff’s motion to compel. Defendants have 23 repeatedly failed to timely respond to Plaintiff’s discovery requests, failed to provide complete 24 responses to Plaintiff’s discovery requests, and failed to provide the certification required under 25 Federal Rule of Civil Procedure 26(g)(1). 26 The Court also finds that Plaintiff made a good faith attempt to obtain discovery from 27 Defendants without the Court’s intervention but was unable to do so, and that Defendants’ 28 conduct thus necessitated Court intervention. Defendants have also failed to provide any

35 1 substantial justification for their failures to timely and appropriately respond to Plaintiff’s 2 discovery requests. Finally, Defendants have not provided the Court with any information 3 indicating that an award of expenses against them would be unjust. Accordingly, the Court will 4 award Plaintiff expenses incurred in bringing the motion to compel, including attorney’s fees.1 5 X. REQUEST FOR SANCTIONS: DISCOVERY MISCONDUCT 6 Finally, Plaintiff seeks to have sanctions imposed on Defendant City for general discovery 7 misconduct. Plaintiff argues, 8 Despite herculean efforts to avoid the filing of these motions, Plaintiff was left with no choice based on Defendant City and its counsel’s repeated efforts to delay 9 and obstruct the discovery process. Counsel’s unprofessional behavior took many forms, including difficulty and delay in crafting the joint statement, itself. As a 10 result of this misconduct, Plaintiff’s counsel was forced to expend substantial efforts over the course of eight months to extract the discovery to which Plaintiff 11 was undisputedly entitled. Defendant City and its counsel’s conduct was inconsistent with the “self-executing’ process that is meant to be discovery and, as 12 a result, they should be sanctioned in an amount commensurate with the misconduct. 13

14 (ECF No. 49 at 15.)

15 Defendants respond as follows: This court wisely and previously cautioned the parties to act civilly during 16 discussions in this matter, and no incidents of incivility have occurred since the admonishment. Counsel for Defendants considers the referenced phone call to be 17 a moot issue. 18 Counsel for Defendant disagrees with prior assertions that he has been “unprofessional, dishonest, and obstructive,” and respectfully asks this court to 19 exercise its discretion and not award sanctions.

20 (ECF No. 49 at 27.)

21 As to Defendant’s reference to a phone call, Plaintiff does not specifically reference any

22 phone call. Presumably, the phone call at issue is the one addressed during the previous, informal

23 discovery dispute conference and Plaintiff has not again specifically raised it.

24 As to Plaintiff’s request for general sanctions, the Court will deny that request. The Court

25 is troubled by Defendants’ ongoing and repeated failures to provide timely and complete

26 discovery responses, and failure to generally comply with the Federal Rules of Civil Procedure

27 governing discovery, as detailed above. The Court also acknowledges that Plaintiff sought to

28 1 The Court will not award fees for the preparation and filing of the non-compliant, 148-page joint statement of discovery dispute. (See ECF Nos. 46, 47.)

36 1 resolve discovery issues without seeking Court interference but notes that the appropriate remedy 2 for a party’s ongoing failure to comply with discovery is a motion to compel following the 3 procedure the Court has set out in its Scheduling Order. The imposition of general discovery 4 sanctions is not warranted here. 5 XI. CONCLUSION 6 Based on the foregoing, IT IS ORDERED that Plaintiff’s motion to compel and for other 7 discovery relief (ECF No. 44) is GRANTED in part and DENIED in part as follows: 8 1. Within forty-five (45) days following entry of this Order, Defendants shall: 9 a. As to each of Plaintiff’s discovery requests: (1) double-check for information in 10 Defendants’ possession, custody, or control that is responsive to the discovery 11 request; (2) produce any newly-found responsive documents; and (3) submit a 12 verification that both explains the steps taken to conduct the double-check and 13 certifies that all responsive documents have been provided. 14 b. As to Defendants’ November 27, 2019, response to discovery: Reproduce the 15 November 27, 2019, discovery response to comply with Federal Rule of Civil 16 Procedure Rule 34(b)(2)(E). To the extent Plaintiff seeks to have Defendants 17 produce the documents in a manner other than as required by Rule 34(b)(2)(E), 18 Plaintiff must seek and obtain a stipulation from Defense counsel for such 19 production. 20 c. As to the 2017 performance review of Defendant Ramar and any other 21 information responsive to Plaintiff’s RPD No. 7: (1) double-check for information 22 in Defendants’ possession, custody, or control that is responsive to this discovery 23 request and specifically search on the City’s computers, servers, and other 24 locations within the City’s possession, custody, or control; (2) produce any 25 newly-found responsive documents; and (3) submit a verification that both 26 explains the steps Defendants took to conduct the double-check and certifies that 27 all responsive documents have been provided. 28

37 1 d. As to RPD No. 14, seeking Defendant Ramar’s former testimony: (1) double- 2 check for information in Defendants’ possession, custody, or control that is 3 responsive to this discovery request, and specifically search the City’s computers, 4 servers, archived documents, and other locations within the City’s possession, 5 custody, or control, including court records from previous cases in which 6 Defendant Ramar has testified; (2) produce any responsive documents; and 7 (3) submit a verification that both explains the steps Defendants took to conduct 8 the double-check and certifies that all responsive documents have been provided. 9 If information responsive to RPD No. 14 is unavailable because the information 10 has been destroyed by or with the permission of Defendants, an explanation as to 11 such destruction shall be included in the verification. If former counsel for 12 Defendants in Holcomb v. Ramar has indicated that responsive information is not 13 available, Defendants shall provide the name of the attorney who so indicated 14 along with an explanation from that attorney as to why the information is no 15 longer available. 16 e. As to RPD Nos. 59, 60, 61, 62, and 63, seeking Monell discovery related to prior 17 litigation in Rodriguez v. City of Modesto, E.D. Cal. Case 1:10-cv-01370-LJO- 18 MJS; Olvera v. City of Modesto, E.D. Cal. Case 1:11-cv-00540-AWI-GSA; Reed 19 v. City of Modesto, E.D. Cal. Case 1:11-cv-01083-AWI-GSA; Mugrauer v. City 20 of Modesto, E.D. Cal. Case No. 1:16-cv-00480-AWI-SAB; and Schmidt v. City of 21 Modesto, E.D. Cal. Case No. 1:17-cv-01411-DAD-MJS: (1) double-check for 22 information in Defendants’ possession, custody, or control that is responsive to 23 these discovery requests, and specifically search the City’s computers, servers, 24 archived documents, and other locations within the City’s possession, custody, or 25 control; (2) produce any responsive documents; and (3) submit a verification that 26 both explains the steps Defendants took to conduct the double-check and certifies 27 that all responsive documents have been provided. If information responsive to 28 RPD Nos. 59, 60, 61, 62, or 63, is unavailable because the information has been

38 1 destroyed by or with the permission of Defendants, an explanation as to such 2 destruction shall be included in the verification. If former counsel for Defendants 3 in the cases referred to in RPD Nos. 59, 60, 61, 62, and 63, has indicated that 4 responsive information is not available, Defendants shall provide the name of the 5 attorney(s) who so indicated along with an explanation from that attorney(s) as to 6 why the information is no longer available. 7 f. As to RPD No. 61, final production of all responsive documents shall be 8 completed within forty-five (45) days of the date this order is entered. If 9 Defendants have not provided all documents responsive to RPD No. 61 within 10 forty-five (45) days of the date this order is entered, unless this deadline is 11 extended by the Court in response to a motion, the Court will sanction Defendants 12 $100 for each day the responsive documents are impermissibly withheld. If 13 Defendants believe a protective order is needed, and are unable to obtain a 14 stipulation from Plaintiff, they must file an expedited motion seeking a protective 15 order. 16 g. As to any other documents Defendants have withheld because there is not a 17 protective order covering such documents, final production of all of these 18 responsive documents shall be completed within forty-five (45) days of the date 19 this order is entered. If Defendants believe a protective order is needed, and are 20 unable to obtain a stipulation from Plaintiff, they must file an expedited motion 21 seeking a protective order. 22 2. Plaintiff is granted leave to request, within forty-five (45) days after entry of this 23 order, that Defendants provide a declaration and/or appear for a Federal Rule of Civil Procedure 24 30(b)(6) deposition on efforts Defendants have taken to search for information responsive to 25 Plaintiff’s discovery request(s). Defendants are directed to comply with any such request from 26 Plaintiff. 27 3. The Court finds spoliation by the City of Modesto/Modesto Police Department of ESI 28 from the cell phone that was issued to Defendant Ramar, and prejudice resulting from the loss of

39 1 that ESI. The Court leaves to the trial judge the determination of the measures necessary to cure 2 the prejudice resulting from the loss of the ESI. 3 4. Plaintiff’s motion to revoke the stipulated protective orders is DENIED. 4 5. The Court overrules Defendants’ objections to the public disclosure of officer 5 personnel and IA files. Defendants may file, within forty-five (45) days of the date this order is 6 entered, a motion not to exceed ten (10) pages in length seeking to keep specific officer 7 personnel and IA files confidential and/or proposing redactions to such files prior to public 8 disclosure. In conjunction with the filing of such motion, Defendants shall also submit for in 9 camera review the documents Defendants seek to keep confidential.2 Plaintiff may file, within 10 fourteen (14) days of the filing of Defendants’ motion, an opposition that is not to exceed ten 11 (10) pages in length. The Court will require the parties to maintain the confidentiality of the files 12 until said motion has been resolved by the Court. In the event Defendants fail to timely file a 13 motion seeking to keep specific officer personnel and IA files confidential, the documents may 14 be disclosed to the public, with such disclosure to be made in compliance with the redaction and 15 other requirements of federal and state law, including California Penal Code § 832.7. 16 6. Plaintiff’s motion for expenses for filing the motion to compel is GRANTED. 17 Plaintiff is directed to file a bill of costs and an accounting of attorneys’ fees. 3 18 7. Plaintiff’s motion for general sanctions for discovery misconduct is DENIED. 19 IT IS SO ORDERED. 20

21 Dated: March 20, 2020 /s/ 22 UNITED STATES MAGISTRATE JUDGE

24 2 Defendants may submit documents for in camera review by mailing them to the attention of Magistrate Judge Erica 25 P. Grosjean at the following address:

26 Clerk of the U.S. District Court for the Eastern District of California 2500 Tulare Street 27 Fresno, California 93721

28 3 Again, the Court will not award expenses for the preparation and filing of the non-compliant joint statement of discovery dispute.