Torres v. Jorrin

Opinion

1 2 3 4 5 6 7 10 GILBERT ANTHONY TORRES, Case No.: 20cv891-AJB(BLM) 11 CDCR #AP-3210, 12 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION REQUESTING USE OF LIE 13 DETECTOR TEST DURING vs. DEPOSITIONS AND AT TRIAL 14

15 JORRIN, et al., [ECF No. 44]

16 Defendants.

17 18 19 Pending before this Court is Plaintiff’s motion titled “Motion to Request a Lie Detector 20 Test While Question These Defendants [sic] Polygraph Examination.” ECF No. 44. Plaintiff 21 requests that he be able to use a polygraph during his depositions of Defendants and during his 22 examinations of Defendants at trial. Id. at 2. Plaintiff’s motion is DENIED for several reasons. 23 Initially, Defendants have not answered Plaintiff’s amended complaint, the Court has not 24 opened discovery, and Plaintiff did not serve Defendants with any discovery request before filing 25 his motion. See Docket. Accordingly, Plaintiff’s motion is premature. As the Court stated in its 26 Order Denying Plaintiff’s Motion Requesting Production of Documents [ECF No. 45], Plaintiff 27 must wait for Defendants to answer the complaint and for the Court to open discovery before he serves any discovery request on Defendants. 1 Furthermore, Plaintiff has not cited any applicable statute or case law to establish the 2 Court’s authority to compel polygraphic examinations. See ECF No. 44. Plaintiff cites California 3 Code of Regulations § 3293(a), which states “Polygraph examinations may be administered by 4 departmental staff to inmates, parolees, and employees in the course of an investigation of 5 official matters, under the following conditions: (1) The examinee has, without coercion, signed 6 a written statement of consent to the examination; (2) The polygraph examiner is an [sic] Office 7 of Correctional Safety staff member; (3) The Assistant Secretary or designee, Office of 8 Correctional Safety, has approved the examination.” Cal. Code Regs. tit. 15, § 3293(a). This 9 regulation applies to administrative policies within the correctional facility and does not apply to 10 civil actions in federal court. Plaintiff’s motion indicates that Plaintiff wants to utilize a “lie 11 detector test” at the same time he is deposing and questioning the witness. Plaintiff provides 12 no authority for this proposal and the Court is not aware of any. Moreover, the proposal does 13 not work with the factual requirements of depositions, trial testimony, or polygraph testing. 14 Finally, while courts in the Ninth Circuit occasionally have allowed parties to submit polygraphic 15 evidence, the courts did so only because all parties agreed to the use of the polygraphic 16 evidence. United States v. Benavidez–Benavidez, 217 F.3d 720, 723 (9th Cir. 2000) (citing 17 Herman v. Eagle Star Ins. Co., 396 F.2d 427, 427 (9th Cir. 1968)). Here, Defendants have not 18 agreed to the use of polygraphic evidence. Without the agreement of all parties, polygraphic 19 evidence is rarely admissible. See Williams v. Nevada Dep't of Corr., No. 2:13-CV-00941-RFB, 20 2015 WL 1442242, at *3 (D. Nev. Mar. 30, 2015) (stating that “[t]he Ninth Circuit has long 21 expressed its hostility to the admission of unstipulated polygraph evidence.”) (internal citations 22 omitted). 23 For all these reasons, Plaintiff’s motion is DENIED. See, e.g., Johnson v. Ohio Dep't of 24 Rehab. & Corr., No. 13-cv-583, 2014 WL 5782939, at *2 (S.D. Ohio 2014) (“plaintiff has pointed 25 to no persuasive authority for his request to compel a party to undergo a polygraph 26 examination”); Sango v. Johnson, No. 13-cv-12808, 2014 WL 4658320, at *2 (E.D. Mich. 2014), 27 adopted by, 2014 WL 4658385 (E.D. Mich. 2014) (“The Federal Rules of Civil Procedure do not 1 || individuals, and [Plaintiff] has provided the Court with no other valid basis for ordering one in 2 || this case.”). 3 IT 1S SO ORDERED. 4 ||Dated: 2/1/2021 lobe Mager 5 Hon. Barbara L. Major United States Magistrate Judge

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