THOMAS MACKEY v. COUNTY OF SAN BERNARDINO ET AL Case No. CV 09-1124-GW (SPx) United States District Court, C.D. California Filed December 19, 2013 Counsel Kimberly I. Carter, Deputy Clerk, Attorneys Present for Applicant: None Present None, Court Reporter / Recorder, None, Tape No., Attorneys Present for Respondent: None Present Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order: Granting in Part and Denying in Part Plaintiff's Motion to Compel Further Discovery Responses from Defendants [98] I. INTRODUCTION *1 On November 26, 2013, plaintiff filed a Motion to Compel Defendants to Provide Further Responses to Interrogatories and Requests for Production (“Motion”). Specifically, plaintiff seeks additional information from defendants on Special Interrogatory Nos. (“SIs”) 1 and 2 and Request for Production of Documents Nos. (“RFPs”) 2, 7, 22, 24, 25, and 26 (docket no. 98). The court has considered the papers filed by the parties, and the arguments made at the December 17 hearing on this motion. As detailed below, the court grants in part and denies in part the Motion. II. BACKGROUND This civil rights action arises out of plaintiff's arrest on August 13, 2007. During the course of the arrest, plaintiff shot at Sheriff's deputies, for which he was later charged and convicted of the attempted murder of three of the deputies. Plaintiff alleged, among other things, that he did not shoot at them, and that the deputies employed excessive force in the course of detaining him by shooting him while he lay prone on the ground. Defendants moved for summary judgment on February 27, 2012. On November 9, 2012, the court accepted the Report and Recommendation of United States Magistrate Judge, granting in part and denying in part defendants' motion. Following the court's determination on summary judgment, the claims remaining are for excessive force by defendants Wolfe and Padilla for shooting plaintiff. On June 10, 2013, plaintiff served his First Set of Special Interrogatories upon each defendant. Declaration of Kelly Raney (“Raney Decl.”), Exs. 2, 3. Two of these interrogatories are at issue here: numbers 1 and 2. Joint Stipulation (“JS”) at 20-26. Plaintiff propounded Requests for Production of Documents on defendants on that day as well. Id. Six of these requests are at issue: 2, 7, 22, 24, 25, and 26. Id. at 26-40. Defendants initially responded to these discovery requests on August 16, 2013 and provided supplemental responses on September 30, 2013 and October 30, 2013. Raney Decl. ¶ 4. On October 17, 2013, plaintiff sent a meet-and-confer letter to defendants, detailing his opposition to defendants' discovery objections. Raney Decl. Ex. 4. Defendants responded in writing on October 28, 2013, and the parties met-and-conferred telephonically on October 30, 2013 to discuss defendants' objections to plaintiff's discovery requests. Raney Decl. ¶¶ 6-7, Ex. 5. Despite these efforts, the parties' disagreement over SIs 1 and 2 and RFPs 2, 7, 22, and 24-26 persist. The parties filed a Joint Stipulation concurrently with the Motion, under Local Rule 37, including the declarations of Kelly Raney in support of the Motion and Algeria Ford in opposition to the Motion. On December 3, 2013, plaintiffs filed a Supplemental Memorandum in Support of Motion to Compel Defendants to Provide Further Responses to Interrogatories and Requests for Production, including the declaration of Kelly Raney (“Supp. Raney Decl.”). The discovery requests at issue can be grouped into three general categories: (1) those seeking personal information about defendants, namely: SI 1 and RFP 22; (2) those seeking defendants' criminal histories, including information about arrests, namely: SI 2 and RFP 7; and (3) those seeking information about defendants' training and employment history, namely: RFPs 2, 24, 25, and 26. III. DISCUSSION *2 Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery regarding any matter that is not privileged and is relevant to the claim or defense of any party involved in the pending action. Fed. R. Civ. P. 26(b)(1). The information sought need not be admissible at trial as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Id. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)). The party seeking to compel discovery bears the burden of showing that the request satisfies Rule 26's relevance requirement. Kelly v. City of San Jose, 114 F.R.D. 653, 667 (N.D. Cal. 1987). A. Discovery Requests Calling for Personal Information In SI 1, plaintiff seeks sensitive personal information about defendants including: full name, address, telephone number, age, height, weight, date of birth, social security number, marital status, employer at the time of the August 2007 shooting incident and current employer. Raney Decl. Ex. 2, SI 1. In RFP 22, plaintiff seeks all of defendants' “portable or cellular telephone bills for the two months preceding and the two months following this INCIDENT.” Raney Decl. Ex. 3, RFP 22. Defendants object to SI 1 as to DOB, SSN, and marital status, contending that this information is irrelevant, sensitive, and confidential. JS at 20, 23-24. As clarified at the hearing, plaintiff also still seeks defendants' home addresses, while defendants object to providing this information. Providing this information to plaintiff poses potential danger to defendants given the historic violence between the parties. Id. at 23-24. Plaintiff responds that the information “should be compelled because it will assist with [plaintiff's] independent investigation of Defendants in connection with this case.” Id. at 21. At the hearing, plaintiff emphasized that any safety concerns could be resolved by producing this information on an attorneys' eyes only basis, and particularly requested defendants' DOBs and home addresses to assist with database searches. In numerous cases, district courts have allowed defendant police officers and police departments to redact sensitive personal and identifying information from documents being produced in discovery. Motley v. Parks, No. CV 00-01472 MMM BQX, 2001 WL 682791, at *2 (C.D. Cal. June 13, 2001) (citing Walters v. Breaux, 200 F.R.D. 271, 2001 WL 483985, *3 (W.D. La. Apr. 18, 2001) (“[T]he documents included in Exhibit A shall be redacted by the undersigned to exclude any medical information, social security numbers, home addresses and home telephone numbers contained in the records before they are provided to counsel”); Scaife v. Boenne, 191 F.R.D. 590, 592 (N.D. Ind. 2000) (“[I]n case after case, where a police officer's personnel files are requested by a plaintiff bringing a federal civil rights claim against a police officer, those files are only made available when the information that is now being sought by Ms. Scaife, and listed above [including current home addresses], has been redacted”); Chauvin v. Sheriff Harry Lee, 2000 WL 567006,*3 (E.D. La. May 8, 2000) (redacting social security numbers, home addresses, and home telephone numbers from law enforcement personnel and internal affairs files prior to production); D'Antoni v. Roach, 1997 WL 627601,*4 (E.D. La. Oct. 10, 1997) (redacting social security numbers, home addresses, home telephone numbers, and medical information contained in law enforcement personnel and internal affairs files prior to production); Johnson v. City of Philadelphia, 1994 WL 612785,*10 (E.D. Pa. Nov. 4, 1994) (ordering that home addresses, social security numbers, and names of family members be redacted before copies of police personnel files were produced to plaintiffs in a § 1983 action); Sasu v. Yoshimura, 147 F.R.D. 173, 176 (N.D. Ill. 1993) (granting a motion for a protective order which made access to police officer personnel files contingent upon the redaction of personal information about an officer and his family); King v. Conde, 121 F.R.D. 180, 190 (E.D.N.Y. 1988) (“The court should also be alert for opportunities to redact the submitted documents to remove sensitive bits of information not useful to the plaintiffs. An obvious example is the desirability of deleting officers' home addresses when the lawsuit involves past violence between the officers and the plaintiffs”); Inmates of Unit 14 v. Rebideau, 102 F.R.D. 122, 129 (N.D.N.Y. 1984) (“[I]n any record where so present, the home addresses of the correction officers are to be deleted, and also the names of their spouses and children”)). *3 Although the district court in Pearson v. Heavey, No. 96 Civ. 3863 (JSM), 1997 WL 159656 (S.D.N.Y. April 3, 1997) ordered a defendant law enforcement officer to provide his social security number to plaintiff, that case does not persuade the court that a similar order is warranted here. There the court noted that “having the defendant's social security number would allow plaintiff to obtain background information that could lead to the discovery of relevant evidence.” The court found significant, however, the fact that “there was nothing in the circumstance of [the] case to suggest that plaintiff posed a serious risk” to the defendant officer's safety. The court concluded: “The determination whether to order the disclosure of personal information concerning a police officer who is a defendant in a civil rights action should be made on a case by case basis.” Id. at *2. Pearson is therefore distinguishable from the instant case, wherein plaintiff has been convicted of the attempted murder of the defendant officers. Nonetheless, the court does find that disclosure of defendants' dates of birth to plaintiff's counsel on an attorneys-eyes-only basis is warranted, as such disclosure will pose a negligible safety risk and may reasonably assist plaintiff's counsel with their investigation of defendants. Disclosure of defendants' home addresses, SSNs, and marital statuses, however, would be too intrusive, and such intrusion is not justified by plaintiff's need to investigate defendants. Similarly, the court denies plaintiff's request to compel defendants' cell phone bills, requested in RFP 22. Plaintiff requested: “All of [defendants'] portable or cellular telephone bills from the two months preceding and the two months following this INCIDENT.” Raney Decl. Ex. 3. Plaintiff asserts two reasons that this information is relevant: (1) the phone records could reveal “an increase in communications between Defendants, possibly pointing to attempts by Defendants to corroborate their story of the incident[,]” and (2) the records might “reveal additional individuals who have knowledge of the incident but whose identities have not been disclosed to Mackey.” JS at 34. At the hearing, plaintiff suggested the request could be limited to communications between defendants, rather than all their calls during the four-month period in question. Defendants dispute the relevance, and note that they do not have these records in any event. The court finds that the information contained within these records is not reasonably calculated to lead to the discovery of admissible evidence. While relevance is to be construed liberally, discovery is not relevant to the subject matter involved in a pending action if the inquiry is only based on the requesting party's mere suspicion or speculation. Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1324 (Fed. Cir. 1990). While it is theoretically possible that the records would suggest collusion by defendants, or could reveal additional individuals who know about the incident, this is a real stretch. The relevance here is minimal, and does not warrant intruding into defendants' telephone records, or justify the burden of trying to locate these records from more than six years ago. The court thus denies plaintiff's motion to compel defendants to respond to RFP 22. B. Discovery Requests Calling for Criminal Histories, Including Arrests The second category of plaintiff's requests relate to defendants' criminal histories. Plaintiff seeks broad discovery not only of defendants' criminal record but also of any and all arrests. Specifically, RFP 7 asks for: “A copy of your criminal record.” And SI 2 asks: “If YOU have ever been arrested, state the following: the date of the arrest; the criminal docket number; the charges brought; the disposition of the matter; and when the record was expunged.” Defendants object that, among other things, the discovery sought is overbroad and irrelevant. JS at 25, 32. The court agrees. In terms of overbreadth, neither of the requests is limited temporally, thus they appear to ask for any and all arrests and/or convictions occurring at any time during defendants' lives. As defendants note, “arrest” and “criminal record” without further definition “encompass[ ] decades of information going back to the deputies' youth, it includes juvenile records, traffic tickets, cases not prosecuted, and cases involving mere violations.” Id. at 25, 32. *4 Additionally, the limitlessness of the requests highlights their vague and questionable relevance. Plaintiff seeks this information to impeach defendants. Id. at 24, 32. It was in that vein, presumably, that defendants suggested limiting the requests to felony arrests and convictions, a compromise that plaintiffs rejected. Id. at 25, 33. With the possible exception of felony convictions and arrests, and misdemeanor convictions and arrests while employed in law enforcement, the court does not see how any other information related to criminal background would be admissible to impeach defendants under Rules 404(b), 608, or 609 of the Federal Rules of Evidence. Indeed, typically only felony convictions may be used; it is only because defendants are law enforcement officers that the court finds things like arrests and misdemeanor convictions might possibly lead to the discovery of admissible evidence. Accordingly, the court will grant in part plaintiff's request for this information. Specifically, the court orders defendants to respond to the requests at issue limited to: (1) felony convictions incurred at any age; (2) felony arrests suffered at age 18 or older; (3) misdemeanor convictions incurred while employed in law enforcement; and (4) misdemeanor arrests suffered while employed in law enforcement involving alleged assaults, use of force, or abuse of authority. C. Discovery Requests Related to Training and Employment The final category of requests relate to defendants' law enforcement training and employment. Plaintiff seeks discovery not only about defendants' training and employment as it relates to the San Bernardino Sheriff's Department (“SBSD”), but also regarding any and all training and employment with San Bernardino County and any law enforcement entity. The four requests in this category ask defendants to produce: YOUR complete personnel file and training record from YOUR employment with the COUNTY as well as any other department who employed YOU, including, but not limited to, all employment applications, physical and mental examinations, general personnel files, general police personnel files, and precinct personnel files (RFP 2); a copy of YOUR training records for YOUR employment with any law enforcement agency or academy (RFP 24); all DOCUMENTS pertaining to YOUR employment with the COUNTY (RFP 25); all DOCUMENTS which reflect YOUR attendance record for your employment with the COUNTY which includes, but is not limited to, all DOCUMENTS which reflect time off for vacations, time off for disciplinary violations, time off for on the job injuries, time off for personal reasons, etc. (RFP 26). Defendants object to these requests contending, among other things, that they are vague, overbroad, and irrelevant. JS at 36, 37, 40. Plaintiff argues that defendants should be compelled to fully respond to these requests given the “significant relevance” of the information. Id. at 26, 36, 37, 40. More specifically, plaintiff notes that this information could be “relevant on the issues of credibility, notice to the employer, ratification by the employer and motive of the officers ... as well as on the issue of punitive damages, in that the information may lead to evidence of a continuing course of conduct reflecting malicious intent.” Id. at 27 (quoting Soto v. City of Concord, 162 F.R.D. 603, 614-15 (N.D. Cal. 1995)). Plaintiff further asserts that psychological evaluations, usually part of officer personnel files, are “relevant to claims against the individual officer-defendants, as such defendants may assert certain immunities which require an evaluation of the officers' subjective state of mind.” Id. at 27 quoting Soto, 162 F.R.D. at 618. *5 Rule 26(b) sets limitations on the scope of discovery. These include the requirement that the court must limit discovery where it determines that “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii). Here, the court finds that most of the documents sought with these requests are irrelevant. Further, the burden of producing all these records would be substantial. But the court finds that training records regarding use of deadly force, and employment records regarding instances or allegations of uses of force by defendants, are relevant. In addition, while requiring defendants to produce records from other law enforcement agencies with which they were previously employed would be too burdensome, they must disclose the names of all law enforcement agencies that previously employed them, if any. Accordingly, in response to RFP 2 and RFP 24, defendants must produce information regarding their training in the use of deadly force, including their training log and SBSD's policy on use of deadly force. In addition, they must produce records relating to instances in which, while they have been employed with SBSD, they have used force or been involved in a shooting, or in which there have been complaints made against them involving use of force or a shooting. Finally, they must produce information or records regarding any disciplinary action of any kind to which they have been subjected while employed with SBSD. The court denies plaintiff's motion to compel a response to RFP 25 as this overbroad request is not stated with reasonable particularity, as required by Rule 34 of the Federal Rules of Civil Procedure. As defendant notes, a request for “all” documents “pertaining to” one's employment is ill-defined and limitless. JS at 38. Similarly, the court denies plaintiff's request to compel a response to RFP 26, agreeing with defendants that their attendance records are irrelevant. JS at 40. D. Sanctions In their papers, defendants sought sanctions against plaintiff under Rule 37, which provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Defendants withdrew their sanction request at the hearing, and in any event the court finds no award of sanction is warranted given the split nature of the court's ruling on this motion and plaintiff's circumstances. Accordingly, sanctions will not be awarded. IV. CONCLUSION Based on the foregoing, IT IS THEREFORE ORDERED that plaintiffs' Motion to Compel (docket no. 98) is GRANTED IN PART AND DENIED IN PART as detailed above and as follows: 1. On or before January 10, 2014, defendants shall produce further responses to the following discovery requests, with the following restrictions and requirements: a. Defendants must provide their dates of birth in response to Special Interrogatory No. 1; b. Defendants must provide further responses (and produce any and all additional responsive documents) to Special Interrogatory No. 2 and Request for Production of Documents No. 7, limited to the following information: (1) felony convictions incurred at any age; (2) felony arrests suffered at age 18 or older; (3) misdemeanor convictions incurred while employed in law enforcement; and (4) misdemeanor arrests suffered while employed in law enforcement involving alleged assaults, use of force, or abuse of authority; and c. Defendants must provide further responses to Request for Production of Documents Nos. 2 and 24, limited to the following: information regarding their training in the use of deadly force while employed with the San Bernardino County Sheriff's Department (“SBSD”), including their training log and the SBSD policy on use of deadly force; records relating to instances in which, while they have been employed with SBSD, they have used force or been involved in a shooting; complaints made against them regarding use of force or a shooting while they were employed with SBSD; records relating to instances in which, while employed with SBSD, they have been disciplined; and the names of all law enforcement agencies that previously employed them, if any; *6 2. All of the documents and information to be produced as required by this order shall be produced subject to a protective order allowing for the documents and information to be produced on an attorneys' eyes only basis, unless otherwise agreed by the parties or otherwise ordered by the court; the parties shall meet and confer to reach agreement on a stipulated proposed protective order, which shall be submitted to the court prior to the deadline for production of the above-described documents and information; and 3. Defendants are not required to provide further responses to Request for Production of Documents Nos. 22, 25, or 26.