Anoush Burmayan v. Garfield Beach CVS, LLC., et al Case No. CV 23-01788-FMO (AGRx) United States District Court, C.D. California Filed October 31, 2023 Counsel K. Lozada, Deputy Clerk, Attorneys Present for Plaintiff: n/a n/a, Court Reporter / Recorder, Attorneys Present for Defendants: n/a Rosenberg, Alicia G., United States Magistrate Judge Proceedings: ORDER RE: PLAINTIFF'S MOTION TO ENFORCE DISCOVERY ORDER AND FOR SANCTIONS (Dkt. Nos. 60, 81) *1 Plaintiff filed a motion to enforce the discovery Order dated August 28, 2023 against the City Defendants[1] (Dkt. No. 42) and for sanctions. (Dkt. No. 60.) The City Defendants filed an opposition. (Dkt. No. 73.) Plaintiff filed a reply. (Dkt. No. 74.) The court heard oral argument on October 25, 2023 and permitted the parties to file supplemental briefs on certain issues by October 30, 2023. (Dkt. No. 79.) Both parties filed supplemental briefs. (Dkt. Nos. 81-82.) The court took the motion under submission without further oral argument. The court considers Plaintiff's motion to enforce the Order dated August 28, 2023 in light of the subsequent Order dated September 28, 2023 on the request for in camera review under the August 28, 2023 Order. (Dkt. No. 66.) The court also reviewed the Order dated May 23, 2023 (Dkt. No. 31) regarding the document requests, time frames, and other matters as to which Defendants had no objection and preceded Plaintiff's motion to compel that resulted in the Order dated August 28, 2023. A. Police Reports The August 28, 2023 ordered the City to produce use-of-force reports not involving the use of guns or other weapons. (Order at 5.) 1. Redactions Plaintiff complains that the City redacted the personal information of third party suspects in the police reports. (COG277-COG460.) The police reports cover 13 separate incidents and are each summarized in the City's opposition. (Dkt. No. 73 at 3-6.) Contrary to Plaintiff's argument, the August 28, 2023 Order dated August 28, 2023 did not address the privacy rights of third party suspects. The court rejected Plaintiff's argument that the City had waived any privilege in the event the City found documents responsive to the August 28, 2023 Order. The City had objected to Plaintiff's request for all complaints and reports about the individual defendant officers regardless of subject matter. The court summarized precedent indicating that, when there is an objection to the scope of a document request, the court may rule on the appropriate scope first and give the responding party the opportunity to assert a privilege as to documents responsive to the court's ruling: When, as here, there is an objection to the scope of the document request, a court may rule on the objection first. The Advisory Committee Notes to the 1993 Amendments to Rule 26 offer an example: he obligation to provide pertinent information concerning withheld privileged materials applies only to items ‘otherwise discoverable.’ If a broad discovery request is made for example, for all documents of a particular type during a twenty year period and the responding party believes in good faith that production of documents for more than the past three years would be unduly burdensome, it should make its objection to the breadth of the request and, with respect to the documents generated in that three year period, produce the unprivileged documents and describe those withheld under the claim of privilege. If the court later rules that documents for a seven year period are properly discoverable, the documents for the additional four years should then be either produced (if not privileged) or described (if claimed to be privileged). *2 Similarly, “[i]f the court finds that the document is within the scope of the objection, and the court overrules the objection, it must then give the party an opportunity to list the document on a privilege log pursuant to Rule 26(b)(5).” United States v. Philip Morris, Inc., 347 F.3d 951, 954, 358 U.S. App. D.C. 226 (D.C. Cir. 2003). (Dkt. No. 42 at 5-6.) In the court's experience, this procedure saves a tremendous amount of party and judicial resources. There are few if any discovery disputes over claims of official information privilege when the scope of the relevant document requests are adjudicated first. In this case, for example, the sole remaining dispute is not about the official information privilege but rather the third party suspects' privacy rights in having their identity and contact information disclosed in police reports. The court now turns to that issue. Significantly, the police reports at issue were not the subject of a complaint or lawsuit against an individual defendant officer. Courts generally order production of citizen complaints against an officer without preserving anonymity “in the absence of special circumstances proved by law enforcement defendants.” Kelly v. San Jose, 114 F.R.D. 653, 666 (N.D. Cal. 1987). “It is not at all clear that people who feel aggrieved by actions of police officers would even think about the possibility that their complaints might be disclosed to another person who feels aggrieved by police officers. And if they did think about it they presumably would want their complaint to help someone who had suffered from a similar source.” Id.; see also Soto v. City of Concord, 162 F.R.D. 603, 621-22 (N.D. Cal. 1995) (finding citizen complainant's privacy interest does not outweigh need for disclosure of complaints made against defendant officers); Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993) (ordering production of complaints and internal affairs histories of officer defendants). At the hearing, Plaintiff argued that the police reports should nevertheless be produced in unredacted form because, even in the absence of complaints or lawsuits, the identity of the suspects may lead to relevant evidence under Fed. R. Evid. 404(b) and 608(b). Plaintiff contends she may unearth evidence that the suspects were dissuaded from filing complaints and that the police reports would be relevant to show “repeated misconduct that went ignored.” (Plaintiff's Supp. Brief at 5-6.) “ ‘Federal courts ordinarily recognize a constitutionally based right of privacy that can be raised in response to discovery requests.’ ” Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005) (citation omitted); see A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006). Third party suspects have a privacy interest in law enforcement files. See Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989) (addressing third party suspect privacy interests in context of access to search warrant affidavits). “Persons who prove to be innocent are frequently the subjects of government investigations. Like a bill of particulars, a search warrant affidavit may supply only the barest details of the government's reasons for believing that an individual may be engaging in criminal activity. Nonetheless, the issuance of a warrant even on this minimal information may indicate to the public that government officials have reason to believe that persons named in the search warrant have engaged in criminal activity. Moreover, persons named in the warrant papers will have no forum in which to exonerate themselves if the warrant materials are made public before indictments are returned. Thus, possible injury to privacy interests is another factor weighing against public access to warrant materials during the pre-indictment stage of an investigation.” Id. at 1216; United States v. Wolfenbarger, 2019 U.S. Dist. LEXIS 115764, *28 (N.D. Cal. July 11, 2019); see also Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (in FOIA context, “ ‘mention of an individual's name in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation’ ”) (citation omitted). *3 Resolution of a privacy objection requires a balancing of the need for the information sought against the privacy right asserted. Breed v. United States Dist. Ct., 542 F.2d 1114, 1116 (9th Cir. 1976) (denying writ but leaving open opportunity for petitioners to return to district court to assert privilege more specifically and possible in camera review); Keith H., 228 F.R.D. at 657 (citation omitted); Soto, 162 F.R.D. at 616; see also Boar, Inc. v. Cty. of Nye, 499 Fed. Appx. 713, 716 (9th Cir. 2012). The City initially produced police reports for the 13 incidents with redaction of third party suspect names and identifying information to address privacy concerns. This procedure is not improper. For example, in one civil rights case, the court commented that Plaintiff could seek discovery of reports regarding Taser use and, if he did so, the reports could be produced initially with the names of private citizens redacted to address privacy concerns. “If, after production of the incident reports, Plaintiff believes that the reports reveal that a Taser was potentially improperly used during one or more incidents, Plaintiff may then seek additional discovery regarding the incidents in question, including of the participants.”[2] Garcia v. City of Imperial, 270 F.R.D. 566, 576 (S.D. Cal. 2010); see also Sernoffsky v. Novak, 2023 U.S. Dist. LEXIS 175902, *19, *21-*22 (S.D. Cal. Sept. 29, 2023) (acknowledging “privacy considerations of the individuals arrested” and authorizing redaction of their names and personal identifying information); Everyday Disc. v. State Farm Gen. Ins. Co., 2018 U.S. Dist. LEXIS 244192, *12 (C.D. Cal. Oct. 30, 2018) (permitting redaction of witness name and identifying information in police reports). The authority Plaintiff cites involve use-of-force reports that were the subject of complaints or investigations. For example, the court in Holloway v. Cty. of Orange, SACV 19-1514 DOC (DFMx) (C.D. Cal.), ordered production of complete use-of-force investigations for the individual deputy defendants. (Dkt. No. 8-1 at 4.) In two investigations, supervisors concluded that the deputy's reports were inconsistent with video of the incidents in question. The court permitted both incidents to be used at trial to challenge the deputy's credibility. (Id. at 11-12, 15, 18); see also Nazarian v. City of Beverly Hills, CV 19-4391 DSF (Ex) (ordering, among other things, production of arrest reports concerning investigation of complaints of excessive force) (attached as Dkt. No. 81-2 at 49-50). Although Plaintiff also provides an order on motions in limine from Howard v. City of Los Angeles, CV 14-3687 SS (C.D. Cal.), the order does not disclose the circumstances under which Plaintiff obtained the evidence she sought to have admitted at trial.[3] *4 At this stage, the court does not have information as to whether the 13 use-of-force incidents were the subject of any investigation by supervisors because Defendants have not yet produced the Blue Teams supervisor reports for the 13 incidents. Such reports may shed light on whether there was a supervisor investigation and, if so, the results of the investigation such as occurred in Holloway. The court will order production of the Blue Teams supervisor reports for the 13 incidents within 14 days after entry of this order. 2. Time Frame Based on the Order dated May 23, 2023, the time period at issue is five years prior to the incident on January 19, 2021 (in other words, January 19, 2016). (Order, Dkt. No. 31 at 3.) The City produced responsive documents during the period 2020-2023. The City explains that the electronic database goes back to 2020. For police reports prior to 2020, the City would have to search hard copy files that are not organized by officer or use of force. Therefore, the City would have to search each police report manually to determine whether it related to (a) an individual defendant and (b) use of force other than guns or other weapons. In response to the court's inquiry, counsel stated that Defendant Ross joined the force in 2017, and Defendant Armendariz joined the force in 2019. (Plaintiff's Supp. Brief at 4.) Accordingly, there is no need to search back to 2016. The electronic search has resulted in the identification of 13 incidents. While truncated, a time period beginning one year before the incident is not unheard of. See Garcia, 270 F.R.D. at 576. In addition, this case arose from an incident involving mask compliance during the global Covid-19 pandemic that did not arise in the United States until 2020. Given the considerations discussed above in connection with redactions, the court will order Defendants to search for supervisor reports regarding use-of-force incidents (not involving guns or weapons) for Defendants Ross or Armendariz in 2019. 3. Digital Media Plaintiff requests any audio, video, or photographs for each of the 13 incidents issue in the police reports. The City responds that the court did not order that this category be produced in the August 28, 2023 Order. Moreover, it would be unduly burdensome to locate these items and then redact them to blur the faces of unrelated third parties. Plaintiff argues that her current motion seeks an order compelling this information even if it was not in the August 28, 2023 Order. This issue overlaps with the issue of redaction discussed above. The court has ordered Defendants to produce the Blue Teams supervisor reports for the 13 incidents. B. Use-of-Force Reports The City states that it produced use-of-force reports from the Blue Teams database for the 13 force incidents that did not involve guns or other weapons. (Opp. at 8.) At the hearing, Plaintiff explained that she is seeking the Blue Teams supervisor reports for these 13 use-of-force incidents for purposes of Monell liability. Defendants correctly point out that the August 28, 2023 Order did not address the supervisor reports, which were apparently requested in a separate set of document requests that were not before the court at that time. Looking at the issue now as discussed above, the court orders the City to complete production of the Blue Teams supervisor reports regarding the 13 incidents within 14 days after entry of this order. C. Dispatch Audio for Incident At Issue *5 The City states that it produced all radio transmissions related to the incident. (Opp. at 8.) Plaintiff does not believe the City and requests a declaration from the custodian who actually downloaded the transmissions. Rule 34 does not require a responding party to provide a custodian declaration in response to a document request. Fed. R. Civ. P. 34(b)(2). Moreover, “[a] requesting party's mere suspicion that additional documents exist is an insufficient basis to grant a motion to compel.” Friedman v. Michaels, 2019 U.S. Dist. LEXIS 212480, *10-*11 (C.D. Cal. Oct. 16, 2019) (collecting cases). “Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld.” Id. at *11 (collecting cases). In response to the court's inquiry, Plaintiff did not articulate any colorable basis for believing that some part of the radio transmission was missing. Plaintiff merely disbelieves the City's representation that it has made a complete production of the radio transmissions related to the incident at issue. Plaintiff's motion to enforce the August 28, 2023 Order as to this category is denied.[4] D. Daily Watch Log for Incident The City states it produced the incident's police report, “which constitutes the ‘daily watch log.’ ” (Opp. at 8.) In response to the court's inquiry, the City stated that it does not maintain a separate daily watch log or daily watch activity report. As discussed above, Plaintiff's mere disbelief is insufficient. Friedman, 2019 U.S. Dist. LEXIS 212480, *10-*11. Accordingly, Plaintiff's motion to enforce the August 28, 2023 Order as to this category is denied. E. Background Investigations The August 28, 2023 Order required the City to produce background investigations in response to Document Request No. 5 to the extent they disclose issues of honesty or dishonesty, violence, or bigotry. The City was not required to produce the portions of the background investigation, if any, that involve the individual defendant officers' personal identifying information, childhood, family, bank or financial accounts, health insurance, or medical issues. The Order provided that the City could request in camera review if the court's guidance was insufficient. Defendants requested in camera review and submitted certain pages from Officer Ross' pre-investigative questionnaire and Officer Armendariz's pre-investigative questionnaire. In view of the time crunch before the scheduled depositions of Ross and Armendariz, the court issued an Order dated September 28, 2023 that ruled on redactions without prejudice to Plaintiff's ability to seek unredacted information after reviewing the order. (Order, Dkt. No. 66.) Plaintiff has not filed such a motion. After in camera review, the court permitted the City to redact information about an individual defendant's conduct as a minor. The court stated that no charges or legal proceedings were involved. (Id. at 2.) The court denied any request to redact information about conduct while an adult. Again, no charges or legal proceedings were involved. (Id.) *6 At the hearing, Plaintiff explained that she seeks information about criminal history and adult employment history. Plaintiff's request for information about the individual defendants' criminal histories has been resolved by the September 28, 2023 Order after in camera review. Plaintiff's request for the adult employment history of each individual defendant is reasonable. Such information may be in the employment application, resume, or other document. The City will be ordered to produce responsive information within 14 days after entry of this order. Order Construing Plaintiff's motion as a motion to compel, IT IS ORDERED that, within 14 days after entry of this order, the City Defendants shall produce: The Blue Teams supervisor reports for the 13 use-of-force reports produced by the City Documents sufficient to show the adult employment history of Officer Ross and Officer Armendariz. Supervisor reports regarding use-of-force incidents (not involving guns or weapons) for Defendants Ross or Armendariz in 2019. IT IS FURTHER ORDERED that, after production of the Blue Teams supervisor reports, counsel shall request a discovery conference to address the issues of (a) production of any or all of the police reports for the 13 incidents without redaction of the suspect names and identifying information; and (b) production of digital media for any or all of the police reports. IT IS FURTHER ORDERED that, in all other respects, Plaintiff's motion is denied. All requests for sanctions are DENIED. cc: District Judge Fernando M. Olguin Footnotes [1] The City Defendants refer to the City of Glendale, Officer Ross and Officer Armendariz. [2] Plaintiff attaches an order in Pelayo v. City of Pomona, CV 17-7292 PSG (SKx) (C.D. Cal.), that appears consistent with this procedure. “Responsive Information,” as defined in that order, could initially be withheld based on privacy. (Dkt. No. 81-2 at 53.) Personally identifiable information of adult non-parties could be readily redacted unless they possess Responsive Information (for example, similar conduct), in which case their identities would be disclosed subject to the protective order. (Id. at 52, 54.). In the event the parties disputed whether the third party adult had Responsive Information, as is the case in this litigation, the dispute would presumably come before the court. Here, the City argues that the incidents underlying the 13 incidents are not similar to Plaintiff's allegations. [3] Plaintiff's citation to Burke v. New York City Police Dep't, 115 F.R.D. 220, 225, 228-29 (S.D.N.Y. 1987), is unhelpful. To the extent relevant to this issue, the plaintiff detective in that case sought documents regarding an investigation into her partner, who submitted a release authorizing disclosure to the plaintiff. Id. at 226. The court permitted redaction of the identity of the other officer investigated, who had not given consent to disclosure, as well the identity of the confidential informant. Id. at 227. By contrast, the record in this case does not contain consents from any of the third party suspects. [4] Nothing in this order precludes Plaintiff from taking discovery as to the manner of production of the radio transmissions for the incident at issue through other means.