ORDER ON DISCOVERY DISPUTE NO. 2

[ECF No. 100]

NITA L. STORMES, District Judge.

Before the court is the Joint Motion for Determination of Discovery Dispute No. 2 between plaintiff in the consolidated action, Bryan Pease ("Plaintiff"), and defendants City of San Diego and San Diego Police Chief Shelly Zimmerman, Christopher Bernard, Brett Crawford, Curtis Doll, Christopher Lingenhol, Arturo Morales, Jr., Nathan Parga, Ricky M. Radasa, Michael Rojas, Jonathan Wells, Franklin White, Kyle Williams, and Jeff Willkomm (collectively "City" or "Defendants"). ECF No. 100. Plaintiff Pease moves to compel documents responsive to 49 requests. ECF No. 100-2. As explained below, the court will GRANT IN PART AND DENY IN PART the motion to compel.

I. BACKGROUND

This case arises from arrests made near the San Diego Convention Center following a rally for and protest against then presidential candidate Trump. Plaintiff alleges a Monell claim and that his arrest was unlawful, violating his First and Fourth Amendment rights. See ECF No. 89. Plaintiff's case was consolidated with the case he brought as counsel for four other attendees at the rally (now Ramirez; formerly Cervantes), alleging the same claims.1 See ECF Nos. 68, 89. Following the consolidation, the parties submitted a joint discovery plan, the Court held a case management conference, and issued a Consolidated Scheduling Order. ECF Nos. 72-74. The Consolidated Scheduling Order affirmed that discovery in the Ramirez remained closed; and that "[f]act discovery limited to Plaintiff Pease's claims shall be completed by all parties by April 19, 2019." ECF No. 74.

Plaintiff propounded interrogatories, requests for admissions, and requests for production to the City Defendants. See ECF No. 87. The City served unverified responses on February 11, 2019. Id. The parties began the meet and confer process, but due to a previously scheduled trial, requested and were granted an extension of time to file this discovery dispute. ECF No. 88.

The dispute now before the Court presents 49 individual requests and two over-arching arguments regarding (1) Plaintiff Pease's propounded discovery regarding acts or threats of violence leading up to the declaration of unlawful assembly in body worn camera ("body cam") footage, and (2) the City's redacted after-action report. See ECF Nos. 100, 100-1. Plaintiff also seeks attorney fees incurred in compelling City Defendants' responses. ECF No. 100-1 at 4.

II. LEGAL STANDARDS

Rule 26 permits discovery of "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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 importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). Information need not be admissible to be discoverable. Id. Once the propounding party establishes that the request seeks relevant information, "[t]he party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Superior Commc'ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009); see Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (requiring defendants "to carry heavy burden of showing why discovery was denied").

"The 2015 amendments to Rule 26(b)(1) emphasize the need to impose `reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.'" Roberts v. Clark County Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016). The fundamental principle of amended Rule 26(b)(1) is "that lawyers must size and shape their discovery requests to the requisites of a case." Id. Discovery and Rule 26 is intended to provide parties with "efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery." Id. This requires active involvement of federal judges to make decisions regarding the scope of discovery. Id.

To the extent that the discovery sought is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive," the court is directed to limit the scope of the request. Fed. R. Civ. P. 26(b)(2). Limits should also be imposed where the burden or expense outweighs the likely benefits. Id. How and when to so limit discovery, or to "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," remains in the court's discretion. Fed. R. Civ. P. 26(c)(1).

III. DISCUSSION

The discovery propounded by Plaintiff to the City appears to mirror the discovery propounded to the County and previously addressed in Discovery Dispute No. 1.2 The Court sees no reason that the rulings on identical discovery requests should differ when propounded to the City as opposed to the County. Accordingly, analysis is incorporated and quoted from the Court's prior order. See ECF No. 103 at 4-6. To the extent the parties raise disputes over specific requests that did not arise in Discovery Dispute No. 1, but to which the same analysis applies, the requests are decided together as identified. Additional arguments specifically raised by these parties regarding body cam footage and the unredacted after action report are addressed subsequently, and finally, the few remaining individual requests are adjudicated.

A. Requests Identical to those Propounded to the County

1. Plaintiff had Ample Opportunity to Obtain Information

ECF No. 103 at 4-6.

As with the discovery propounded to the County, Plaintiff issues broad requests to the City that attempt to deduce information for all plaintiffs in the consolidated case, which is beyond the bounds of presently available discovery.5 Compare ECF No. 74 at 1-2 (closing fact discovery for the Ramirez case and permitting only discovery "limited to Plaintiff Pease's claims") with ECF No. 91-1 (Joint Statement)." Plaintiff provides no explanation as to why this discovery was previously unavailable, or that the discovery is particularly necessary now, or that the circumstances for his own arrest are distinct from the Ramirez plaintiffs to pursue this discovery. To the contrary, most of the discovery seeks information about widespread violence or the threat thereof. ECF No. 100-2. Responses to these requests are no more germane to discovery for Plaintiff than the Ramirez plaintiffs, and so information regarding the designation should have been requested in the now-closed discovery of the lead case. Cf. Bovarie v. Schwarzenegger, No. 08cv1661 LAB (NLS), 2011 WL 767249, at *7 (S.D. Cal. Feb. 25, 2011) (refusing to extend discovery deadline where "the discovery Plaintiff now seeks was foreseeable earlier in the litigation and should have been requested by now").

As before, Plaintiff had "ample opportunity" to gather information in discovery and fails to show any special circumstances that render additional discovery necessary or show the information was previously unavailable or specific to Plaintiff's arrest apart from the Ramirez plaintiffs. Pursuant to Rule 26, the Court may properly limit discovery. On this basis, the Plaintiff's motion to compel further responses is DENIED as to the following requests:

2. Other Identical Requests

Interrogatories 13 and 14 ask Defendants to "IDENTIFY each and every DOCUMENT YOU intend to submit as evidence at trial" and then to identify the person who will authenticate each document. ECF No. 100-2 at 34-36. These requests are identical to the ones propounded to the County and previously addressed. As before, Plaintiff's motion to compel is DENIED.

The motion to compel further responses to these interrogatories boils down to a premature request for an exhibit list and witness list. Plaintiff is not entitled to these documents at this stage of the litigation. See CivLR 16.1(f); ECF No. 74. Further, Plaintiff's argument that further response is necessary to identify documents intended to be used as "pure impeachment" evidence contravenes the plain language of Rule 26. Fed. R. Civ. P. 26(a)(1)(A), (3)(A) ("In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment[.]").

Requests for Admission 4 and 5 ask Defendants to "Admit that at the time that BRYAN PEASE was arrested, there was [4] no evidence of widespread violence [and 5] no evidence of the imminent threat of widespread violence within two city blocks of BRYAN PEASE." These requests are identical to the ones propounded to the County and previously addressed. As before, Plaintiff's motion to compel is DENIED.

The Court does not find these requests seek relevant information to the claims and defenses and are therefore beyond the bounds of Rule 26. Plaintiff was arrested for failure to disperse after an unlawful assembly had been declared. See ECF No. 100 at 6. The Fourth Amended Complaint makes clear that Plaintiff was arrested after the declaration of unlawful assembly. ECF No. 89 at ¶¶ 2, 11, 12. Acts of violence or the imminent threat thereof in the time leading up to the declaration of unlawful assembly may be relevant to the declaration of unlawful assembly. But this request seeks evidence of violence occurring after the declaration at the time of Plaintiff's arrest. Whether or not there were still acts of violence occurring after the declaration of unlawful assembly, or within two blocks of Plaintiff's arrest, is not relevant to the claims alleged and so, the motion to compel is denied.

Similarly, the related discovery requests, Interrogatories 15, 16, and 17 (asking Defendants to identify all facts, persons, and documents, respectively, for each response to an RFA that was not an unqualified admission) and Request for Production No. 17 (requesting production of all documents which support the denial of a request for admission) are therefore also DENIED.

Requests for Production Nos. 8 and 9 ask for camera footage which Defendants believe show widespread violence or an imminent threat of widespread violence "at the location where BRYAN PEASE was arrested." ECF No. 100-2 at 48-49. Plaintiff's motion to compel as to this interrogatory is denied as duplicative and an attempted end-run around discovery. Plaintiff's requests for all footage of widespread violence or the imminent threat for all parts of the rally (RFPs 6 and 7) were denied above because there was ample opportunity to obtain that discovery during the previously open discovery period. See § III.(a). Had Plaintiff previously timely issued a request such that this request sought to supplement any additional footage that may be specific to Plaintiff, that request may have been permissible. But that is not the case. The scope of this interrogatory is subsumed by Request Nos. 6 and 7, which were denied. Id. It would be an unfair end-run around the currently open parameters of discovery to permit a response to this request under the present circumstances. See, e.g., Cruz v. United States, No. 14CV2956-LAB (DHB), 2016 WL 727066, at *2-3 (S.D. Cal. Feb. 24, 2016) (finding subsequent RFP to be "substantially similar" to earlier RFP and rejecting as untimely joint discovery motion based on response deadline for subsequent RFP); ViaSat, Inc. v. Space Sys./Loral, Inc., No. 12-CV-0260-H WVG, 2013 WL 3467413, at *5-7 (S.D. Cal. July 10, 2013) (declining to allow end run around discovery deadline via Rule 30(b)(6) deposition on twenty-four topics duplicative of interrogatory responses, to which the court already denied motion for supplemental responses).

B. Disputes Regarding Body Cam Footage are Untimely

Many of the requests at issue relate to the production of body cam footage, specifically: Requests for Production Nos. 4-10, Requests for Admission Nos. 1-3, and Interrogatory No. 5. ECF No. 100-1 at 2. City Defendants contend that such footage ("to locate acts of violence, or the lack thereof") is not relevant because Plaintiff Pease's complaint does not claim that violence was a reason for his allegedly unlawful arrest. ECF No. 100-1 at 6. Further, City Defendants argue that being required to review hundreds of hours of video footage is not proportional to the needs of this case and would impose undue burden and expense. ECF No. 100-1 at 6.

While not raised by either party, the Court notes that during discovery in the Ramirez matter, the parties filed a request for "an extension of time within which to file a motion to compel regarding production of certain body camera footage that the parties are in the process of reviewing." ECF No. 45. The parties presented no good cause for the extension and failed to provide the information required by the Chambers' Rules. See ECF No. 45; Hon. Nita L. Stormes, Civil Case Procedures §§ III(C) and VI(C)(2)(d)). The Court denied the motion without prejudice to refiling the extension request in compliance with the Chambers' Rules. ECF No. 47. The parties again filed a request for extension, and presented as good cause the same arguments the parties assert in the present dispute:

ECF No. 48 at 2. Unfortunately, while the parties' second request for an extension included good cause, it did not include any information regarding the timeliness of the dispute. Accordingly, the Court ordered the Ramirez plaintiffs—through their counsel, Plaintiff, Mr. Pease—to supplement the request with information necessary to establish the dispute was timely. ECF No. 49 ("The amended joint motion presents good cause for the requested extension but continues to fail to satisfy the Chambers Rules, specifically, the parties fail to provide the Court with the original date or deadline that the motion to compel was due. . . . [Ramirez] Plaintiffs, as the party who would be filing a motion to compel, must file a declaration providing the missing information at their earliest opportunity."). The Ramirez plaintiffs never filed the requested supplemental information, and so the Court denied the request for an extension. ECF No. 50 ("Plaintiffs were directed on August 9, 2018 to supplement the joint motion with the missing information at their "earliest convenience." [] No supplement has been filed, and sufficient time has now passed that the court concludes the motion is properly DENIED. [Dated August 22, 2018]).

Under Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure, the Court must limit discovery that is "unreasonably cumulative or duplicative." Fed. R. Civ. P. 26(b)(2)(C). Moreover, courts in this district, including this one, routinely reject attempts to circumvent discovery deadlines via duplicative discovery requests. See, e.g., Cruz v. United States, No. 14CV2956-LAB (DHB), 2016 WL 727066, at *2-3 (S.D. Cal. Feb. 24, 2016) (finding subsequent RFP to be "substantially similar" to earlier RFP and rejecting as untimely joint discovery motion based on response deadline for subsequent RFP); see also Bird v. PSC Holdings I, LLC, No. 12-CV-1528 W NLS, 2013 WL 1120659, at *1 (S.D. Cal. Mar. 18, 2013) (finding joint motion untimely where submitted by separate defendant represented by the same counsel, advising the parties that "any discovery demands which are substantially similar to previous demands will not re-start the clock for filing a discovery motion, and may be grounds for a protective order").

Requests regarding body cam are plainly duplicative of prior requests and the subject of a prior dispute. Thus, any discovery dispute regarding the production of the body cam footage is now untimely.6 That Plaintiff re-submitted these discovery requests following consolidation does not re-start the clock. As stated in both the initial and consolidated scheduling orders in this case:

ECF No. 74 at 3 (emphasis in original); ECF No. 18 at 2. The discovery dispute regarding body cam footage is untimely.

In addition to reasons stated above regarding ample opportunity, Plaintiff's motion to compel further responses regarding body cam footage is also DENIED as untimely as to Requests for Production Nos. 4, 5, 6, 7, 10; Requests for Admission Nos. 1, 2, 3; and Interrogatory No. 5.

C. Dispute Regarding the After-Action Report is Untimely

The after-action report at issue is a report prepared after the event to `examine the pre-planning, execution, and demobilization by the San Diego Police Department and allied agencies as it relates to the Trump Rally on May 27, 2016.' It is dated June 21, 2016." ECF No. 100-3 at 2-3. It was produced by City Defendants "on April 11, 2018 in redacted form." ECF No. 100-3 at 2.

Plaintiff argues the un-redacted after-action report is responsive to RFP Nos. 3 and 4, and thus should be produced. ECF No. 100-1 at 2-3. City Defendants counter that the after-action report is not responsive to RFP Nos. 3 or 4. ECF No. 100-1 at 7. The City further contends that because the redacted version of the after-action report was produced in April 2018, Plaintiff's current request is an attempt to "take a second bite of the apple." ECF No. 100-1 at 7. In response, Plaintiff acknowledges the redacted report was produced, but argues this does not preclude him from obtaining an un-redacted version in his consolidated case. ECF No. 100-1 at 2-3.

Plaintiff's motion to compel is untimely. The City's "initial response" to Plaintiff Pease's after-action report requests was in April of 2018. ECF No. 100-1 at 7. Pursuant to this Court's Chambers' Rules, counsel were required to file their joint motion for determination of their discovery dispute within forty-five days of the initial response. Hon. Nita L. Stormes, Civil Case Procedures § VI(C)(2)(b). This discovery dispute is being filed approximately one year later. See ECF No. 100 (filed April 19, 2019). "A failure to comply [with the timing requirements] will result in a waiver of a party's discovery issue." ECF No. 74 at 3; ECF No. 18 at 2. Plaintiff's re-issuance of a discovery request does not re-start the clock. See, e.g., Cruz v. United States, 2016 WL 727066, at *2-3; Bird v. PSC Holdings I, LLC, 2013 WL 1120659, at *1). Likewise, Plaintiff's argument that consolidated cases retain their independent character as the basis to permit duplicative discovery is belied by Plaintiff's own actions and treatment of this case: Plaintiff's own representations to the Court indicate understanding that the consolidation was for all purposes other than trial.7 See ECF No. 61 at 4 ("parties do not intend to duplicate any discovery and can combine the discovery in the two cases. However, the cases should not be consolidated for trial purposes"); ECF No. 68 at 4-5 ("Plaintiffs do not seriously contend that prejudice would result from pre-trial consolidation. To the extent Plaintiffs are concerned with trial issues, Plaintiffs acknowledge that the Court has authority to bifurcate trial[,] . . . retain[ing] their separate characters' and warrant[ing] `a separate judgment in each case." Plaintiff's motion to compel is DENIED as untimely.

D. Other Disputed Requests

The only remaining requests that are not addressed by the above analysis are Requests for Admission Nos. 20-23, and Requests for Production 15 and 16.

ECF No. 100-2 at 18. In its original response, the City objected, and provided no response. ECF No. 100-2 at 18. In response to Plaintiff's motion to compel, the City indicates it has since supplemented its response. Id.

Without knowing what the supplemental response is, and whether Plaintiff was satisfied with it, there is nothing for the Court to compel. To the extent the City may have supplemented its response on the eve of the deadline of filing this motion, the Court does not condone such a practice. The parties are expected to meet and confer regarding discovery responses and the joint motion so that only disputed requests are presented for adjudication. Nonetheless, based on the City's representation that a supplemental response was provided an no other argument from Plaintiff, the motion to compel is DENIED AS MOOT as to RFA No. 20.

ECF No. 100-2 at 19. City Defendants objected, claiming the information sought is "not relevant to the claims or defenses of any party." Id.

The Court disagrees. Plaintiff's case is, at its core, challenging his arrest. This request seeks information directly related to the circumstances of his arrest. This information is within the bounds of permissible Rule 26 discovery. The Court GRANTS Plaintiff's motion to compel as to RFA No. 21. Defendants are to provide an answer consistent with Rule 36 by no later than 14 days from the date of this order.

ECF No. 100-2 at 19. City Defendants objected, claiming that it seeks information with is not relevant to Plaintiff Pease's claims. Id.

For the same reason as RFA No. 21, the Court overrules Defendants' objection. Plaintiff is plainly asking about the circumstances of his arrest, which is the issue of the case. City Defendants claim that the request is "overly broad as to time" and "vague and ambiguous." Id. at 19-20 (noting that it is "unclear at what point in time the request is referring to, what `line' he is referring"). These objections are not persuasive; the request is understandable, and Defendants' answer may, consistent with Rule 33, only admit or deny parts of the request. Plaintiff's motion to compel is GRANTED as to RFA No. 22. Defendants are to provide an answer consistent with Rule 36 by no later than 14 days from the date of this order.

ECF No. 100-2 at 20. Defendants object, again stating that the information sought is irrelevant. Id. However, as with the previous requests in this category, Plaintiff Pease is requesting an admission directly related to the circumstances of his arrest. Plaintiff's motion to compel is GRANTED as to RFA No. 23. Defendants are to provide an answer consistent with Rule 36 by no later than 14 days from the date of this order.

ECF No. 100-2 at 51. Defendants' response indicates that the unredacted report was produced. Id. at 52. Plaintiff's motion to compel is therefore DENIED AS MOOT.

ECF No. 100-2 at 52. Plaintiff's motion to compel is GRANTED IN PART AND DENIED IN PART. To the extent that there may be documents that are specific and limited to the scope of Requests for Admission Nos. 21-23 for which the Court ordered Defendants to provide further responses, documents should also be produced. To the extent that Plaintiff's motion to compel for any Request for Admission was denied (RFAs 1-10, 14-19, 20, 25), the request to produce documents is also denied. Any responsive documents should be produced within 14 days of the order.

E. Attorneys' Fees

The Court declines to grant attorneys' fees to either party. M.B.L., Inc. v. Fed. Ins. Co., No. CV 13-03951 BRO (AGRx), 2014 U.S. Dist. LEXIS 197240, at *6 (C.D. Cal. June 16, 2014) ("District courts have discretion to award attorney's fees and costs for discovery misconduct either under Federal Rule of Civil Procedure 37 or under their inherent authority to manage the proceedings before them.") (citing Fed. R. Civ. P. 37 and Chambers v. NASCO, Inc., 501 U.S. 32, 33 (1991)).

IV. CONCLUSION

Plaintiff's motion to compel is GRANTED IN PART AND DENIED IN PART. Defendants are to provide answers to Requests for Admission Nos. 21, 22, and 23 within 14 days of this order. The motion to compel is denied as to all other requests for the reasons provided in this order.

IT IS SO ORDERED.