N.W., Plaintiff, Trevor Woods, et al., Plaintiffs, v. City of Long Beach et al., Defendants, Officer John. B. Fagan, et al., Defendants EDCV 14-1569-VAP (SPx)LACV 14-8374-VAP (SPx) United States District Court, C.D. California, Eastern Division Filed June 07, 2016 Phillips, Virginia A., United States District Judge ORDER RE: MOTIONS IN LIMINE *1 On October 5, 2015, Plaintiff N.W., Plaintiffs Woods and Woodson, and Defendants filed Motions in Limine (“MIL”). After considering the papers filed in support of, and in opposition to, the Motions, as well as the arguments advanced at the hearing, the Court issues its rulings as follow. I. MOTIONS IN LIMINE A. MOTION TO BIFURCATE Plaintiffs move to bifurcate the trial. They propose a first phase to cover issues of liability and a second phase, if necessary, on the amount of damages. (Mot. to Bifurcate.) Under Federal Rule of Civil Procedure 42(b), the Court may order a separate trial of one or more separate issues “for convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b). Here, the issue of damages and liability are not intertwined. Bifurcation will address the risk that Plaintiffs will be unduly prejudiced in the liability phase of the trial by evidence that will be adverse to them but relevant for the purposes of damages, including evidence of Decedent's conviction, Decedent's drug use, and Plaintiff Woods's and Woodson's incarceration. Bifurcation will not prejudice Plaintiffs during the liability phase of the trial because the jury is not supposed to consider Plaintiffs' damages or factors pertaining to Decedent's life expectancy and quality of relationship with Plaintiffs when deciding Defendants are liable for Decedent's death. Accordingly, the Court ORDERS that the trial be bifurcated. B. PLAINTIFF N.W.'S MOTIONS IN LIMINE 1. Pl. N.W. MIL No. 1: To Limit testimony of defense expert Robert Fozni Plaintiff N.W. seeks to exclude or limit the testimony of Defendants' expert witness, Mr. Robert Fonzi. (Pl. N.W. MIL No. 1 at 3.) Plaintiff argues Mr. Fonzi's testimony should be limited because he intends to offer (1) legal opinions as to the objective reasonableness of the officers' actions; and (2) unsupported conclusions regarding the sufficiency of the Long Beach Police Department's (“LBPD”) policies, procedures, customs, and training. (Pl. N.W. MIL No. 1 at 2.) Plaintiff argues that these opinions are irrelevant and will not assist the jury's understanding of the evidence or determine a fact in issue, making them inadmissible under Federal Rule of Evidence 702. (Id.) Alternatively, Plaintiff argues that the Court should limit Mr. Fonzi's testimony under Rule 403 because any probative value of his testimony would be substantially outweighed by the danger of confusing and misleading the jury. (Id.) Defendants oppose the Motion on the grounds that Mr. Fonzi, through his Rule 26 report and deposition testimony, will be able to establish the requirements for expert testimony under Rule 702. (Opp. Pl. N.W. MIL No. 1 at 3.) Moreover, Defendants argue that experts may rely on hearsay when forming their opinions (FRE 703) and offer opinions that reach the ultimate issue in the case (FRE 704). (Opp. Pl. N.W. MIL No. 1 at 3.) Plaintiff seeks to exclude the following opinions (“Opinions 1-6” respectively): 1. That “under the totality of the circumstances, it was reasonable for the officers (Officers Fagan and Martinez) to believe that Decedent Tyler Woods posed a significant threat to the them [sic] and innocent by-standers, because of the imminent danger he caused by his actions and refusal to comply.” (Fattahi Decl. Ex. A, Rule 26 Report of Robert Fonzi (“Fonzi Report”) at 5.) *2 2. That the officers' reported subjective opinions are relevant to whether the use of deadly force was “objectively reasonable.” (Fonzi Report at 5.) 3. That the officers' use of deadly force was consistent with unnamed “national and statewide training standards.” (Fonzi Report at 6.) 4. That the officers “followed appropriate state law, department policies, tactics, escalation of force principles, and the training guidelines taught statewide by the Police Officer Standards and Training Commission.” (Fonzi Report at 6.) 5. That under the totality of the circumstances, it would be reasonable for an officer to believe Decedent “posed a threat of imminent danger that was life threatening.” (Fonzi Report at 6.) 6. That there is no evidence in the LBPD's policies, procedures, or training that indicates a custom, policy, or practice encouraging or condoning excessive force. (Fonzi Report at 6.) Plaintiff N.W. argues that Mr. Fonzi's Opinions 2, 4, and 6 are not based on reliable methodologies, and thus should be excluded under Rule 702. (Pl. N.W. MIL No. 1 at 9.) Mr. Fonzi does not explain how he reaches these Opinions other than citing his “training, knowledge, and experience.” (Fonzi Report at 6.) According to Plaintiff, without more, these Opinions do not meet the two prong reliability and relevancy test for expert testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993); Defendants have failed to establish the reliability of Mr. Fonzi's testimony, as he does not explain how his experience leads to his conclusions, why that experience is a sufficient basis for the opinion, or how that experience is reliably applied to the facts in this case. See Hernandez v. City of Albequerque, Case No. 2004 WL 5522847, at * 8 (D.N.M. Jan. 23, 2004). Plaintiff N.W. further argues that a number of Mr. Fonzi's opinions are impermissible legal conclusions, and therefore seeks to exclude the witness's testimony to the extent it offers legal opinions related to the objective reasonableness of the officers' conduct. (Opinions 1, 2, and 5.) Defendants counter that Rule 704 allows Mr. Fonzi to offer opinions regarding the “ultimate issue in the case, e.g., whether the force used was reasonable.” (Opp. Pl. N.W. MIL No. 1 at 3.) Though expert testimony is appropriate where “scientific, technical, or other specialized knowledge will assist the trier of fact,” expert testimony consisting of legal conclusions is generally inappropriate. Aguilar v. Int'l Longshoremen's Union Local # 10, 966 F.2d 443, 447 (9th Cir. 1992) (upholding district court's exclusion of expert legal opinion as “utterly unhelpful”). While expert testimony may be permissible to describe department or agency processes and procedures, such testimony should not prescribe legal standards to apply to the facts of the case. Marx & Co., Inc. v. Diners' Club, Inc., 550 F.2d 505, 508–09 (2d Cir. 1977) (permitting expert testimony regarding SEC registration practices but excluding testimony interpreting legal effect of contract terms). The rule permitting a qualified expert to opine on the ultimate issue does not lower the bar so as to make all opinion testimony admissible. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. Even if a jury is not misled into adopting legal conclusions offered by an expert witness, the testimony remains objectionable if it communicates a legal standard, explicitly or implicitly, to the jury; an expert cannot instruct the jury on the law. These rules are meant to protect against the admission of opinions which would merely tell the jury what result to reach.[1] *3 Accordingly, Mr. Fonzi's Opinions 1, 2, 3, and 5 are excluded to the extent they are not based on reliable methodologies or are legal conclusions. Mr. Fonzi can offer opinions about relevant police practices in response to proper hypothetical questions at trial. Mr. Fonzi's Opinions 4 and 6 are admissible to the extent foundational evidence is not excluded under the Court's ruling on PL. N.W. MIL No. 3. 2. Pl. N.W. MIL No. 2: To Exclude District Attorney's Conclusions Plaintiff N.W. seeks to exclude the Los Angeles County District Attorney's Office's conclusions that there was insufficient evidence to charge the officers with homicide. (Pl. N.W. MIL No. 2 at 2.) Plaintiff argues that the District Attorney's investigation focused on whether there was sufficient evidence to prove its case beyond a reasonable doubt. (Pl. N.W. MIL No. 2 at 3.) Here, of course, Plaintiff must only satisfy a “preponderance of the evidence” standard to determine whether the officers used excessive force. In other words, different burdens of proof apply and different factual inquiries are involved. Hence, the District Attorney's conclusions are irrelevant and evidence regarding the Office's investigation are further rendered, under Rule 403, inadmissible because it would tend to confuse and mislead the jury. Accordingly, to the extent that this evidence has any relevance, its probative value is substantially outweighed by a danger of confusing the issues and misleading the jury. 3. Pl. N.W. MIL No. 3: To Exclude Evidence of Undisclosed Matters Plaintiff N.W. contends that Defendants in this case have failed to respond to discovery and identify documents in compliance with Rule 26(a) and Rule 34. (Declaration of John C. Fattahi ¶ 3.) Defendants have not disclosed information relating to the City's training, policies, and procedures despite discovery requests by Plaintiff N.W. and corresponding assurances by Defendants. Plaintiff seeks to exclude information, including witnesses, documents, and electronically stored information, which Defendants did not disclose pursuant to F.R.C.P 26, or which Defendants did not produce in response to Plaintiff's discovery requests. (Pl. N.W. MIL No. 3 at 2.) Plaintiff argues that allowing any previously undisclosed evidence to be introduced at trial would unduly prejudice Plaintiff, who has not been able to depose witnesses, including members of the police department.[2] (Id.) Further, Plaintiff requests an adverse inference instruction stating that the jury may infer that the undisclosed evidence would have been unfavorable to Defendants. This information is relevant to Plaintiff's individual liability claims against the officers, as well as his municipal and supervisory claims against the City for condoning excessive force and failure to implement proper training. Under Rule 37, a nondisclosing party is not allowed to use information or witnesses at trial that were not properly disclosed under Rule 26. “[FRCP] 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by [FRCP] 26(a) that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001). “Two express exceptions ameliorate the harshness of [FRCP] 37(c)(1): The information may be introduced if the parties' failure to disclose the required information is substantially justified or harmless.” Id.Here, Defendants did not explain why they failed to disclose relevant documents in compliance with the Court's discovery deadlines. Defendant's opposition states that “with continued cooperation and discussion, the matter will be resolved.” *4 Under Rule 37(b)(2), “a court has authority to instruct a jury that it may make an inference with respect to certain factual matters based on a party's failure to produce evidence on those factual matters.” Parrick v. FedEx Ground Package System, Inc., Case No. 2010 WL 3724825, at *5 (D. Mont. Sept. 17, 2010) (citing Insurance Corp. of Ireland, Ltd., v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 705 (1982)). Accordingly, the Court GRANTS the Motion, precludes Defendants from introducing evidence at trial that was not produced in response to Plaintiff's discovery requests, directs Plaintiff N.W. to submit a proposed an adverse inference instruction that this undisclosed evidence would have been unfavorable to Defendants. C. PLAINTIFFS WOODS'S AND WOODSON'S MOTIONS IN LIMINE 1. Pls. MIL No. 1: To Exclude Information Acquired After the Shooting and Not Known to the Officers at the Time of the Incident Plaintiffs Woods and Woodsons seek an order “to exclude any and all evidence, testimony, and argument concerning specific items of information that were acquired after the shooting of Decedent Tyler Woods and were not known to the involved officers at the time of the incident,” including Decedent's criminal history, alleged membership in, or affiliation or association with, any street gang, the presence of marijuana in Decedent's system at the time of the incident and at autopsy and any effects thereof on Decedent's behavior and mental state, Decedent's alleged prior history of drug use, and information concerning the August 2013 armed robbery incidents that was not known to the involved officers at the time of the incident (“information acquired after the shooting”). (Pls. Woods MIL No. 1 at 2-6.) Plaintiffs bring this motion under Federal Rules of Evidence 401, 402, and 403, on the basis that this evidence is irrelevant because it was “not known to the officers on the scene at the time of the incident.” (Id. at 6.) Defendants argue Decedent's history of arrests and other contacts with law enforcement are relevant to both the issues of liability and damages. (Opp. Pls. MIL No. 1 at 3.) Specifically, Defendants contend this evidence will be relevant during the liability phase because it will allow Defendants to “test the witness'[s] knowledge of Woods'[s] past so the jury can properly assess the witness as a competent and reliable witness.” (Id.) Further, Defendants argue Woods's past – including the outstanding warrant against him -- is relevant to show why he ran from the police. (Id.) Defendants contend this evidence is also relevant during the damages phase insofar as it will allow the jury to “properly assess the quality of the parent-child relationship” between Plaintiffs and the [D]ecedent.” (Id.) “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). The evidence of facts and circumstances not known to the officers during their encounter with Woods is irrelevant. Moreover, the officers do not claim to have shot Woods because of any of this information, but rather because they believed that he posed an imminent threat. The jury must evaluate the officers' decision to use deadly force based on what a reasonable officer knew at the time of the shooting. *5 Here, if Defendants can establish Decedent knew about the outstanding arrest warrant, as of the time of pursuit, evidence of the warrant's existence may be probative as to his state of mind on the night of the shooting. The probative value of that evidence, however, is low: the Parties do not dispute that Decedent fled from Officer Fagan. Hence, the possibility that Decedent fled in order to evade arrest does little to explain why, as Defendants allege, they believed Woods to be armed. Accordingly, to the extent Decedent's outstanding warrant is probative of the issue of excessive force, it is substantially outweighed by the danger of confusion to the jury and unfair prejudice, as the officers were not attempting to arrest Decedent because of the warrant, and it is not clear Decedent knew that the warrant had been issued. See Fed. R. Evid. 403. Further, some of the information acquired after the shooting, as discussed above, is relevant to damage. If Plaintiffs establish liability in the first phase, Defendants can introduce evidence of the Decedent's criminal convictions, and the presence of marijuana in his system. Decedent's history of drug use is relevant to the determination of noneconomic damages as recognized in California; as it goes to his “life expectancy ..., health, habits, activities, lifestyle, and occupation.” California Civil Jury Instruction 3921. Decedent's criminal history may be relevant to the issue of damages, as it will inform the jury's decision regarding future earnings. See Gallagher v. City of West Covina, No. CV 00-377 CBM (RNBx), 2002 WL 1770761, at *5 (C.D. Cal. Jul. 29, 2002); Castro v. County of Los Angeles, 2015 WL 4694070, at *4 (“[E]vidence concerning the fact of decedent's prior incarceration and the duration thereof is relevant to the determination of noneconomic damages.... Decedent's periods of prior incarceration are relevant to noneconomic damages, since incarceration would tend to reduce the amount of ‘society and comfort’ decedent could provide to his family.”); accord Lopez v. Aitken, No. 07-CV-2028, 2011 WL 672798, at *4 (S.D. Cal. Feb. 18, 2011). Although the fact of prior convictions and periods of incarceration is admissible, the nature of the charges of conviction is inadmissible as the probative nature of such evidence is substantially outweighed by the danger of unfair prejudice. Furthermore, Defendants should not introduce evidence, argue, or question witnesses regarding Decedent's: • warrants, arrests, alleged membership in, or affiliation or association with, any street gang; • information concerning the August 2013 armed robbery incidents allegedly involving Decedent. Subject to the foregoing, the Court GRANTS in part and DENIES in part Plaintiffs Woods's and Woodson's MIL. 2. Pls. MIL No. 2: To Exclude Hearsay Statements Attributable to Decedent Plaintiffs seek to exclude certain statements attributable to Decedent on the basis they constitute inadmissible hearsay for which no exception applies, and because the probative value of those statements is substantially outweighed by the danger of prejudice. See Fed. R. Evid. 801(c). Specifically, Plaintiffs seek to exclude statements concerning (1) Decedent's criminal history and gang affiliation; (2) his desire to die rather than return to jail; and (3) any purported plans to commit a robbery on or around the date of his death. (Pls. Woods MIL No. 2 at 2-6.) First, Decedent's statements are party admissions under Rule 801(d)(2) of the Federal Rules of Evidence. Wolff v. Padja, No. 1:14-CV-01466-CL, 2016 WL 258635, at *1 (D. Or. Jan. 20, 2016) (“[B]ecause this action is brought on Mrs. Wolff's behalf by her estate, the Court finds this statement to be admissible as an admission by a party opponent.”) (citing Kesey, LLC v. Francis, No. CV 06-540-AC, 2009 WL 909530, at *18 n. 17 (D. Or. Apr. 3, 2009), opinion adopted, No. CIV 06-540-AC, 2009 WL 1270249 (D. Or. May 5, 2009), aff'd 443 Fed. Appx. 565 (9th Cir. 2011); accord Schroeder v. de Bertolo, 942 F.Supp. 72, 78 (D. PR. 1996) (“Rosita was deceased at the time of the trial. Nevertheless, she was a party to this action through her estate. If plaintiffs had succeeded in obtaining a verdict against defendants, Rosita's estate would have received a monetary award. Therefore, the fact that Rosita was dead does not diminish the interpretation that her estate, in representation of Rosita, was a party to the present cause of action.”). *6 Second, although such statements are prejudicial, they are more probative than prejudicial. Defendants argue “independent evidence that Woods expressed a desire to die rather than return to prison helps explain why Woods did not obey commands.” (Id.) The introduction of such evidence is highly prejudicial, but the probative value of these statements outweighs the prejudicial effect. The statements substantiate Defendants' assertions that Decedent was not following commands and acting unpredictably at the time of the incident. In turn, these facts bear on whether, objectively, Defendants' use of force was excessive or unreasonable. As Defendants intend to offer the proposed evidence to assert the truth of the matter asserted, it is hearsay, and accordingly, the Court DENIES Plaintiffs Woods's and Woodson's MIL No. 2. 3. Pls. MIL No. 3: To Exclude Evidence of Plaintiffs' Prior “Bad Acts” Plaintiff Woods was convicted of four counts of felony robbery, one count of criminal threats, two counts of false imprisonment, and one count of kidnapping on March 26, 2009. (Pls. Woods MIL No. 3 at 2-3.) Plaintiff Woods has also been convicted of: burglary in December of 2008, armed robbery in April 2004, reckless driving in 2000, a hit and run in 1998, possession of cocaine with intent to distribute in 1996, six vehicle infractions and misdemeanors from 1987 until 1993, carrying a concealed firearm in 1991, and providing false identification to a police in 1987. Plaintiff Woodson was convicted of two counts of felony robbery, one count of felony kidnapping, three counts of false imprisonment, and a conviction of burglary in January of 2003. The nature of these crimes is not relevant to Plaintiffs' propensity to tell the truth; therefore, the probative value is outweighed by the risk of undue prejudice and needlessly presenting cumulative evidence. Similarly, Plaintiffs' alleged membership in gangs is more prejudicial than probative and evidence of such will not be allowed during any stage at trial. Under FRE 609(b), evidence of convictions that are more than 10 years old is admissible only if the conviction's “probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect,” and “the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” Fed. R. Evid. 609(b). Here, both Plaintiffs remain in custody. At the liability stage of trial, however, their convictions and present incarceration are more prejudicial than probative. Fed. R. Evid. 403. During the damages phase of the trial, however, Defendants may introduce evidence that Plaintiffs and Decedent have spent time apart. Defendants will also be allowed to introduce evidence that Plaintiffs Woods and Woodson were convicted of felonies in 2009 and 2003 respectively; however, Defendants will not be permitted to discuss the details of the crimes for which Plaintiffs are confined. The probative value is substantially outweighed by the risk of undue prejudice, the risk of misleading the jury, and the risk of presenting cumulative evidence. Fed. R. Evid. 403. D. DEFENDANTS' MOTIONS IN LIMINE 1. DMIL No. 1: To Exclude Evidence of the “Other Acts” of Defendants Rule 404(b) states “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed. R. Evid. 404(b). However, it may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. *7 “Other act” evidence is admissible under Rule 404(b) if the “other act:” (1) has sufficient evidence to support a finding by the jury that the defendant committed the similar act; (2) is not too remote in time; (3) proves a material issue in the case; and (4) is similar to the offenses charged. Duran v. City of Maywood, 221 F.3d 1127, 1133–34 (9th Cir. 2000). “Even if all four conditions are met, the evidence may still be excluded if under Rule 403, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.” Id. at 1134. Plaintiffs argue Defendants have not fulfilled their discovery obligations, including failure to have provided information regarding prior excessive force incidents by the officers involved in this case. (Opp. DMIL No. 1.) Plaintiffs argue this evidence is relevant for damages, to show the officers' intent and absence of mistake, to impeach the officers, and to show a relevant pattern of conduct. (Opp. DMIL No. 1 at 2-8.) Therefore, the Court DENIES in part Defendant's Motion in Limine No. 1. During the punitive damages phase of trial, if any, Plaintiffs are directed they may argue, introduce evidence, and question witnesses regarding conduct, which took place prior to the events at issue in this case, involving excessive force by Officers Fagan and Martinez. 2. DMIL No. 2: To Exclude Decedent's “Pain and Suffering” Evidence Defendants seeks to exclude any evidence that Decedent was denied medical care and any evidence regarding Decedent's pain and suffering. Defendants argue that evidence of Decedent's pain and suffering and delayed medical care should be excluded under Rule 403 because it requires expert opinion and would require the jury to speculate. (DMIL No. 2 at 3-4.) On April 6, 2016, Plaintiff N.W. and Defendants filed a notice of settlement, and this is no Fourth Amendment claim in this case. (Doc. No. 73.) Accordingly, the Court finds that Defendant's MIL to exclude evidence of Decedent's pain and suffering and delay of medical care is MOOT. 3. DMIL No. 3: To Exclude Evidence of “Administrative Investigation Findings” Defendants seek to exclude “evidence of the findings of any administrative investigation related to the shooting.” (DMIL No. 3 at 2.) Defendants argue that findings from any administrative hearings or reviews, including findings from “any shooting board,” should not be introduced or referenced. (Id. at 4.) They also contend this evidence has no relevance to the present case, would be hearsay, and would be unfairly prejudicial. (Id. at 5.) Plaintiffs argue this evidence is a “non-retained expert's testimony based on hypotheticals and/or the officers' own statements about the incident.” (Opp. DMIL No. 3 at 1.) Findings from an administrative board are likely to mislead the jury and call for a minitrial over the events, procedures, and testimony heard previously. The jury may accord such evidence more undue deference. For the foregoing reasons, the Court GRANTS Defendant's motion to exclude evidence of the “administrative hearing findings.” II. CONCLUSION For the reasons stated above, the court: GRANTS Plaintiffs' joint motion to bifurcate liability from damages at trial; GRANTS in part and DENIES in part Plaintiff N.W.'s MIL No. 1: to limit the testimony of defense expert Robert Fozni; GRANTS Plaintiff N.W.'s MIL No. 2: to exclude conclusions from the District Attorney's criminal investigation; GRANTS Plaintiff N.W.'s MIL No. 3: to exclude information, including witnesses, documents, and electronically stored information that Defendants did not disclose during discovery; *8 GRANTS in part and DENIES in part Plaintiffs Woods's and Woodson's MIL No. 1: to exclude information acquired after the shooting and not known to the officers at the time of the incident; GRANTS Plaintiffs Woods's and Woodson's MIL No. 2: to exclude hearsay statements attributable to Decedent; DENIES Plaintiffs Woods's and Woodson's MIL No. 3: to exclude evidence of Plaintiffs' prior “bad acts;” GRANTS Defendants' MIL No. l: to exclude evidence of the “other acts” of Officers Fagan and Martinez; FINDS Defendants' MIL No. 2: to exclude evidence of Decedent's pain and suffering and delay of medical care to be MOOT; GRANTS Defendants' MIL No. 3: to exclude evidence of “administrative investigation findings.” IT IS SO ORDERED. Footnotes [1] Although Rule 704 abolishes the per se rule against testimony regarding ultimate issues of fact, it does not open the door to all opinions, questions which would allow an expert witness to tell the jury what result to reach; nor is Rule 704 intended to allow expert witnesses to give legal conclusions. See, e.g., Hygh v. Jacobs, 961 F.2d 359, 361 (2d Cir. 1992); Shahid v. City of Detroit, 889 F.2d 1543, 1547 (6th Cir. 1989); Specht v. Jensen, 853 F.2d 805, 810 (10th Cir. 1988). [2] Including a second deposition of the involved officers, which Defendants agreed could occur after receipt of the documents at issue; and the Rule 30(b)(6) deposition of the City and LBPD Officers Tovar, Brunson, Moreno, and Richardson, which Defendants unilaterally took off calendar and for which they have failed to provide alternative dates. (Fattahi Decl. ¶ 5).