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6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 DAVID RICE and ELIZABETH RICE, CASE NO. 3:20-cv-05223 RJB 9 individually and as a marital community, and SETH DONAHUE, 10 Plaintiffs, ORDER ON PARTIES’ 11 v. DISCOVERY MOTIONS
12 CITY OF ROY, a Washington municipality, CHRIS JOHNSON, 13 individually, and DARWIN ARMITAGE, individually, 14 Defendants. 15 THIS MATTER comes before the Court on the Defendants’ Motion to Compel (Dkt. 62) 16 Defendants’ Motion for Protective Order re: Officer Johnson’s Pre-Employment File (Dkt. 68) 17 and Plaintiffs’ Motion to Reopen Discovery (Dkt. 70). The Court has reviewed the pleadings 18 filed regarding the motions and the remaining file. 19 This case arises from a police officer involved shooting just south of the Roy, 20 Washington city limits in February of 2019. Dkt. 1. Trial in the case is set to begin on August 21 23, 2021. Dkt. 16. 22
23 24 1 FACTS 2 The Plaintiffs allege that David Rice and his nephew, Seth Donahue, were driving a 3 moving utility vehicle (“UTV”) southbound on a set of railroad tracks and City of Roy Police 4 Officer Chris Johnson lit up his vehicle’s spotlight and, without warning, began shooting at 5 them. Dkt. 1. Plaintiffs Rice and Donahue make federal claims for violation of their Fourth and
6 Fourteenth Amendment rights to be free from unreasonable seizures, arrest without probable 7 cause, and the excessive use of force. Id. They make state law claims for negligence, false 8 arrest, battery, and emotional distress. Id. Plaintiff Elizabeth Rice makes claims for violation of 9 her Fourteenth Amendment rights and loss of consortium. Id. The Plaintiffs seek damages, 10 attorneys’ fees and costs. Id. 11 In the June 10, 2020 case scheduling order, the expert disclosure deadline was February 12 24, 2021 and the discovery deadline was April 26, 2021. Dkt. 16. By order of the Court, the 13 expert disclosure deadline was extended to May 7, 2021 and the discovery deadline was 14 extended to June 18, 2021. Dkts. 36 and 46. The parties now file three discovery motions
15 regarding discovery issues which they contend they cannot resolve. 16 DISCUSSION 17 Under Fed. R. Civ. P. 26(b)(1), 18 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 19 the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the 20 importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its benefit. Information within this 21 scope of discovery need not be admissible in evidence to be discoverable. 22 Under Fed. R. Civ. P. 26(b)(2)(C), 23 On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: 24 1 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less 2 expensive;
3 (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or 4 (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). 5 Defendants’ Motion to Compel Plaintiffs to Participate in Psychiatric IMEs. “The 6 court where the action is pending may order a party whose mental or physical condition . . . is in 7 controversy to submit to a physical or mental examination by a suitably licensed or certified 8 examiner.” Fed. R. Civ. P. 35(a)(1). 9 The Defendants’ motion to compel the Plaintiffs to participate in psychiatric IMEs (Dkt. 10 62) should be granted. There is good cause for the examination and the Plaintiffs have put their 11 mental health at issue. 12 Pursuant to Rule 35(a)(2)(B), this order must specify the “time, place, manner, conditions 13 and scope” of the examination. Accordingly, at a mutually agreeable time, but no later than three 14 weeks from the date of this order, the Plaintiffs should participate in a remote (on a platform like 15 Zoom)(unless they can agree to an in-person examination) 90-minute psychiatric examination 16 with the Defendants’ rebuttal expert Dr. Paul Ciechanowski. As proposed by the Defendants, the 17 examination should explore current and past behavioral health issues and symptoms, social and 18 developmental history, medical history, current and past medications, and potentially include 19 some psychological testing. 20 Defendants’ Motion for a Protective Order Regarding Officer Johnson’s Pre- 21 Employment Records. Pursuant to Rule 26(c)(1)(A), for good cause, the court may “issue an 22 order to protect a party or person from . . . oppression, or undue burden or expense, including . . . 23 forbidding the disclosure or discovery . . . ” 24 1 On February 16, 2021, the Defendants served Plaintiffs with a privilege log related to the 2 employment materials that are the subject of this motion. Dkt. 69-2. The sought-after pre- 3 employment records include Officer Johnson’s application, criminal history report, polygraph, 4 and psychological examination. Id. On June 18, 2021 (the last day for discovery and related 5 motions), Plaintiffs’ counsel contacted Defense counsel and indicated that he wanted the pre-
6 employment materials. Dkt. 69, at 2. (In their response, the Plaintiffs state that they also seek a 7 copy of the post shooting psychological evaluation of Officer Johnson by Dr. Thomas Petak. 8 Dkt. 86.) That same day, the Defendants filed the instant motion for a protective order. Dkt. 68. 9 The Court ordered the records be provided to it for in-camera review. Dkt. 99. Those 10 materials were reviewed and will be filed under seal in the record. 11 The Defendants’ motion protecting Officer Johnson’s pre-employment records (Dkt. 68) 12 should be granted, in part, and denied, in part. They have shown good cause for an order 13 protecting Officer Johnson’s criminal history report, the polygraph and psychological 14 examination. Rule 26(c)(1)(A). The Defendants assert that the materials at issue are protected
15 by the executive privilege. Dkt. 68. “[W]hen an executive privilege is asserted, the courts must 16 balance the public interest in the confidentiality of governmental information against the needs 17 of a litigant to obtain data, not otherwise available to him, with which to pursue a non-frivolous 18 cause of action.” See Elliott v. Webb, 98 F.R.D. 293, 296 (D. Idaho 1983). The Defendants have 19 shown a substantial need in keeping the records confidential – to avoid having applicants be less 20 than candid in their applications and psychological evaluation. While the Plaintiffs assert that 21 these documents may be relevant to their claims, a review of the criminal history report, the 22 polygraph and the psychological evaluation demonstrates that they contain no information 23 relevant to the Plaintiffs’ claims. The Defendants further point out that in all but one case cited 24 1 by Plaintiffs, the courts ordered disclosure of psychological examination reports done after a 2 shooting because the examinee would know the results would be shared and had no expectation 3 of privacy in them. In their reply, the Defendants state that Dr. Petak gave Chief Armitage the 4 results of the post shooting examination by telephone and that there is no written report. 5 The Plaintiffs have not shown good cause for protection of Officer Johnson’s application.
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6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 DAVID RICE and ELIZABETH RICE, CASE NO. 3:20-cv-05223 RJB 9 individually and as a marital community, and SETH DONAHUE, 10 Plaintiffs, ORDER ON PARTIES’ 11 v. DISCOVERY MOTIONS
12 CITY OF ROY, a Washington municipality, CHRIS JOHNSON, 13 individually, and DARWIN ARMITAGE, individually, 14 Defendants. 15 THIS MATTER comes before the Court on the Defendants’ Motion to Compel (Dkt. 62) 16 Defendants’ Motion for Protective Order re: Officer Johnson’s Pre-Employment File (Dkt. 68) 17 and Plaintiffs’ Motion to Reopen Discovery (Dkt. 70). The Court has reviewed the pleadings 18 filed regarding the motions and the remaining file. 19 This case arises from a police officer involved shooting just south of the Roy, 20 Washington city limits in February of 2019. Dkt. 1. Trial in the case is set to begin on August 21 23, 2021. Dkt. 16. 22
23 24 1 FACTS 2 The Plaintiffs allege that David Rice and his nephew, Seth Donahue, were driving a 3 moving utility vehicle (“UTV”) southbound on a set of railroad tracks and City of Roy Police 4 Officer Chris Johnson lit up his vehicle’s spotlight and, without warning, began shooting at 5 them. Dkt. 1. Plaintiffs Rice and Donahue make federal claims for violation of their Fourth and
6 Fourteenth Amendment rights to be free from unreasonable seizures, arrest without probable 7 cause, and the excessive use of force. Id. They make state law claims for negligence, false 8 arrest, battery, and emotional distress. Id. Plaintiff Elizabeth Rice makes claims for violation of 9 her Fourteenth Amendment rights and loss of consortium. Id. The Plaintiffs seek damages, 10 attorneys’ fees and costs. Id. 11 In the June 10, 2020 case scheduling order, the expert disclosure deadline was February 12 24, 2021 and the discovery deadline was April 26, 2021. Dkt. 16. By order of the Court, the 13 expert disclosure deadline was extended to May 7, 2021 and the discovery deadline was 14 extended to June 18, 2021. Dkts. 36 and 46. The parties now file three discovery motions
15 regarding discovery issues which they contend they cannot resolve. 16 DISCUSSION 17 Under Fed. R. Civ. P. 26(b)(1), 18 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering 19 the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the 20 importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its benefit. Information within this 21 scope of discovery need not be admissible in evidence to be discoverable. 22 Under Fed. R. Civ. P. 26(b)(2)(C), 23 On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: 24 1 (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less 2 expensive;
3 (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or 4 (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1). 5 Defendants’ Motion to Compel Plaintiffs to Participate in Psychiatric IMEs. “The 6 court where the action is pending may order a party whose mental or physical condition . . . is in 7 controversy to submit to a physical or mental examination by a suitably licensed or certified 8 examiner.” Fed. R. Civ. P. 35(a)(1). 9 The Defendants’ motion to compel the Plaintiffs to participate in psychiatric IMEs (Dkt. 10 62) should be granted. There is good cause for the examination and the Plaintiffs have put their 11 mental health at issue. 12 Pursuant to Rule 35(a)(2)(B), this order must specify the “time, place, manner, conditions 13 and scope” of the examination. Accordingly, at a mutually agreeable time, but no later than three 14 weeks from the date of this order, the Plaintiffs should participate in a remote (on a platform like 15 Zoom)(unless they can agree to an in-person examination) 90-minute psychiatric examination 16 with the Defendants’ rebuttal expert Dr. Paul Ciechanowski. As proposed by the Defendants, the 17 examination should explore current and past behavioral health issues and symptoms, social and 18 developmental history, medical history, current and past medications, and potentially include 19 some psychological testing. 20 Defendants’ Motion for a Protective Order Regarding Officer Johnson’s Pre- 21 Employment Records. Pursuant to Rule 26(c)(1)(A), for good cause, the court may “issue an 22 order to protect a party or person from . . . oppression, or undue burden or expense, including . . . 23 forbidding the disclosure or discovery . . . ” 24 1 On February 16, 2021, the Defendants served Plaintiffs with a privilege log related to the 2 employment materials that are the subject of this motion. Dkt. 69-2. The sought-after pre- 3 employment records include Officer Johnson’s application, criminal history report, polygraph, 4 and psychological examination. Id. On June 18, 2021 (the last day for discovery and related 5 motions), Plaintiffs’ counsel contacted Defense counsel and indicated that he wanted the pre-
6 employment materials. Dkt. 69, at 2. (In their response, the Plaintiffs state that they also seek a 7 copy of the post shooting psychological evaluation of Officer Johnson by Dr. Thomas Petak. 8 Dkt. 86.) That same day, the Defendants filed the instant motion for a protective order. Dkt. 68. 9 The Court ordered the records be provided to it for in-camera review. Dkt. 99. Those 10 materials were reviewed and will be filed under seal in the record. 11 The Defendants’ motion protecting Officer Johnson’s pre-employment records (Dkt. 68) 12 should be granted, in part, and denied, in part. They have shown good cause for an order 13 protecting Officer Johnson’s criminal history report, the polygraph and psychological 14 examination. Rule 26(c)(1)(A). The Defendants assert that the materials at issue are protected
15 by the executive privilege. Dkt. 68. “[W]hen an executive privilege is asserted, the courts must 16 balance the public interest in the confidentiality of governmental information against the needs 17 of a litigant to obtain data, not otherwise available to him, with which to pursue a non-frivolous 18 cause of action.” See Elliott v. Webb, 98 F.R.D. 293, 296 (D. Idaho 1983). The Defendants have 19 shown a substantial need in keeping the records confidential – to avoid having applicants be less 20 than candid in their applications and psychological evaluation. While the Plaintiffs assert that 21 these documents may be relevant to their claims, a review of the criminal history report, the 22 polygraph and the psychological evaluation demonstrates that they contain no information 23 relevant to the Plaintiffs’ claims. The Defendants further point out that in all but one case cited 24 1 by Plaintiffs, the courts ordered disclosure of psychological examination reports done after a 2 shooting because the examinee would know the results would be shared and had no expectation 3 of privacy in them. In their reply, the Defendants state that Dr. Petak gave Chief Armitage the 4 results of the post shooting examination by telephone and that there is no written report. 5 The Plaintiffs have not shown good cause for protection of Officer Johnson’s application.
6 While some of the information is identifying information, there is no showing that with some 7 redaction, that document should not be turned over. 8 The Defendants’ motion to protect Officer Johnson’s pre-employment records (Dkt. 68) 9 should be granted as to Officer Johnson’s criminal history report, the polygraph and 10 psychological examination, and denied as to his application. To the extent that the Defendants 11 move to protect Dr. Petak’s written report of Officer Johnson’s post-shooting examination, that 12 motion should be denied without prejudice. There is no known written report to protect. 13 Plaintiffs’ Motion to Reopen Discovery and Allow the Testimony of Neil Bennett 14 and Joseph Anderson. Pursuant to Fed. R. Civ. P. 16(b)(4) the court may modify a case
15 scheduling order for good cause. 16 The Plaintiffs’ Motion to Reopen Discovery and Allow the Testimony of Neil Bennett, an 17 economic impact analyst, and a rebuttal expert, Dr. Joseph Anderson, a toxicologist (Dkt. 70) 18 should be denied. The Plaintiffs disclosed Mr. Bennett as an expert witness on June 7, 2021 and 19 disclosed his report on June 9, 2021, well beyond the May 7, 2021 expert witness disclosure 20 deadline. Additionally, while the Plaintiffs timely disclosed rebuttal expert Dr. Anderson, his 21 report was not produced until July 2, 2021, well past the discovery deadline. The Plaintiffs have 22 failed to show good cause for these late disclosures. While the parties have agreed to do some 23 depositions after the discovery deadline, the Defendants have shown that they are prejudiced by 24 1 the late disclosure of Mr. Bennett and by the late report of Dr. Anderson. The Plaintiffs’ motion 2 should (Dkt. 70) be denied. 3 IT IS SO ORDERED. 4 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 5 to any party appearing pro se at said party’s last known address.
6 Dated this 7th day of July, 2021.
7 A
8 ROBERT J. BRYAN 9 United States District Judge
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