Defendants move to strike Plaintiffs' claims to punitive damages, or, alternatively, to bifurcate liability and compensatory damages in a first phase and punitive damages in a second phase. First, Defendants ask the Court to strike punitive damages altogether because Plaintiffs' evidence does not support a finding of punitive damages. Defendants argue that Sgt. Walker and Deputy Labayna had “good faith” beliefs that their actions were reasonable. Yet, the evidence on this point is inconsistent; Defendants will offer the their testimony that they acted in good faith, and Plaintiffs will introduce their own testimony, the surveillance video of the pepper spray incident, and other evidence to suggest that no reasonable officer would have acted the way Defendants did. The jury has the duty to resolve these evidentiary conflicts and make credibility determinations, and then decide whether Defendants' actions justify imposing punitive damages. Should the jury credit Plaintiffs' theory of this case, Plaintiffs may be entitled to punitive damages, so the Court DENIES Defendants' request to strike punitive damages entirely.

The Court will bifurcate the determination of the amount of punitive damages from the determinations of liability, compensatory damages, and Defendants' state of mind for punitive damages, however. The Court has discretion to bifurcate claims or issues “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy[.]” Fed. R. Civ. Proc. 42(b); Handgarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004).

Defendants are certainly correct that, if the jury finds in their favor on liability, punitive damages will not have to be addressed. Plaintiffs object only that bifurcating punitive damages will thwart judicial economy because the same evidence may have to be presented in the two phases. Further, the net worth of the individual officer Defendants may be relevant to computing punitive damages, but introducing this evidence in the first phase could also confuse the jury and cause unfair prejudice during the liability phase. Bifurcation avoids these risks. See Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 373-74 (2d Cir. 1988). To solve these problems, the Court will bifurcate the amount of punitive damages into a second phase and conduct the first phase for liability, compensatory damages, and the punitive damages state-of-mind determinations. In other words, the trial will proceed with phase one encompassing liability, compensatory damages, and whether Defendants have acted with the requisite fraud, oppression, or malice to support entitlement to punitive damages. If the jury returns a verdict entitling Plaintiffs to punitive damages, the trial will proceed to a brief second phase encompassing only proof of the amount of punitive damages. Therefore, the Court GRANTS Defendants' motion to bifurcate.

*2 Defendants move to strike Plaintiff Khorrami’s excessive force claim for failing to comply with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA requires exhaustion of administrative remedies before a “prisoner” can bring a civil rights claim in federal court: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. Subsection (h) defines “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary programs.” Id. § 1997e(h). The Ninth Circuit has limited this PLRA exhaustion requirement to a prisoner currently incarcerated at the time of filing the lawsuit, not a prisoner who has been released. See Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (“[W]e hold that only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentences for criminal offenses are ‘prisoners’ within the definition of 42 U.S.C. § 1997e[.]”); see also Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (“[W]e hold that litigants—like Greig—who file prison condition actions after release from confinement are no longer ‘prisoners’ for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision.”); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (stating that section 1997e(a)“requires that the plaintiff exhaust administrative remedies, but only if the plaintiff is a prisoner at the time of filing.”); see also Kerr v. Puckett, 138 F.3d 321, 3222-23 (7th Cir. 1998) (drawing the same conclusion under 42 U.S.C. § 1997e(e)); Harris v. Gardner, 216 F.3d 970, 974-75 (11th Cir. 2000) (en banc) (same).

Plaintiff Khorrami was released from custody on the morning of February 17, 2007 and filed the instant lawsuit on March 13, 2007. He was not incarcerated at that time, so he need not comply with the PLRA and exhaust any administrative remedies before bringing his claims. Therefore, the Court DENIES Defendants' motion to strike his claim for excessive force on this basis.

Defendants move to exclude or limit testimony from Plaintiffs' expert, Charles L. Duke, and move for sanctions in the form of the costs and fees expended in preparing this motion. Defendants claim that Plaintiff’s designation of Duke was both untimely and did not comply with Federal Rule of Civil Procedure 26.

Pursuant to the Court’s Scheduling Order in this case, expert designations were due on January 28, 2008. On that day, Defendants designated an expert witness, Curtis Cope. Thereafter, on February 20, 2008 Plaintiffs designated Duke as a “rebuttal” expert, as permitted by Federal Rule of Civil Procedure 26(a)(2)(c)(ii). Rule 26 permits these “counter” disclosures “if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party” within 30 days of the date of the disclosure by the other party. Fed. R. Civ. Proc. 26(a)(2)(c). Failure to timely disclose expert information under Rule 26 may result in sanctions under Rule 37, including exclusion of that evidence at trial. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

Defendants first challenge Plaintiffs' characterization of Duke as a “rebuttal” expert witness. “The function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.” See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) (“As such, rebuttal evidence may be used to challenge the evidence or theory of an opponent—and not to establish a case-in-chief.”); see also Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991) (“Rebuttal must be kept in perspective; it is not to be used as a continuation of the case-in-chief.”). Duke sets forth in his expert declaration that he will testify on only one issue, namely, that the use of pepper spray against Plaintiff Khorrami constituted excessive force. He does not mention Cope or his proposed expert opinions, let alone discuss or rebut his testimony or attack his qualifications. The Court can reasonably expect that, if Duke were a “rebuttal” witness, he would at least identify the evidence he is rebutting and then provide testimony on why that evidence is wrong, is unreliable, or cannot be credited, or why Cope is not qualified to give his opinions.[2]

*3 Plaintiffs carry the ultimate burden to prove their civil rights claims. Even though designated as a “rebuttal” witness, Duke is merely continuing Plaintiff’s case in chief, rather than refuting evidence presented by Defendants. See Cates, 928 F.2d at 679. Plaintiffs might have reasonably expected the need for an expert of this type and might have retained Duke prior to the expert designation deadline, but they did not. See Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005) (upholding provision in scheduling order that compelled plaintiff to anticipate needing an expert witness). Therefore, their designation of Duke was untimely under Rule 26.

Even if untimely, Plaintiffs may demonstrate that their late designation was “harmless.” See Yeti, 259 F.3d at 1107. Plaintiffs suggest Defendants were not harmed by any delay because, prior to trial, Defendants had the opportunity to depose Duke without limit and were provided his opinions and the documents on which he relied. Defendants, in turn, identify no specific prejudice resulting from the late disclosure. They vaguely claim that they were unable to prepare properly for Duke’s deposition and were precluded from pursuing “certain avenues” of questioning, but they do not identify which questions they omitted or what “avenues” were foreclosed by Plaintiffs' late designation. Duke’s proposed testimony appears straightforward and Defendants examined him two months prior to trial. Cf.Yeti, 259 F.3d at 1107 (excluding late-designated expert testimony because report was disclosed only one month before a complex trial and no deposition had been taken). Therefore, Plaintiffs' delay in his designation was harmless and the Court will not exclude Duke’s testimony on this basis.

Defendants also attack the sufficiency of Duke’s disclosure under Rule 26. Under Rule 26(a)(2)(B), an expert report must contain: a complete statement of all of the expert’s opinions; the data and information considered in forming these opinions; exhibits supporting these opinions; the expert’s qualifications, including publications within the last 10 years; a list of other cases in which the expert has testified as an expert within the last four years; and a statement of the expert’s compensation. Defendants lodge three objections: (1) Duke reserved the right to supplement his opinion, so his report was not “complete”; (2) Duke’s report states that he only relied on three documents, when he actually relied on more; and (3) Duke does not list the cases in which he has testified in the last four years. Defendants claim these shortcomings prevented them from deposing Duke properly and justify excluding his testimony from trial.

The Court rejects Defendants' attempts to nit-pick Plaintiffs' disclosure. As to Defendants' first point, Plaintiffs indicate that Duke’s complete opinions appear in his report, and, like Defendants' own expert, he simply reserved the right to supplement them in the future. He has not done so. Second, that Duke identified only three sources on which he based his opinion is Plaintiffs' problem, not Defendants'. The Court presumes that Defendants asked Duke at his deposition about the evidence on which he relied. If he relied on these three documents alone, this is a matter that might be taken up at trial, perhaps through an attack on the reliability of Duke’s opinion. If he relied on other documents, Defendants may cross-examine him on that issue, too. But this does not provide a basis to prevent the jury from hearing his testimony. Third, although Duke did not disclose prior cases in which he testified, Plaintiffs did in a follow-up email. In short, at the time of Duke’s deposition, Defendants likely knew Duke’s opinions and the bases for them, as well as Duke’s qualifications to provide these opinions. Any shortcomings in Duke’s initial report were either rectified or harmless, so his testimony will be excluded on this basis.

*4 Finally, Defendants attack Duke’s failure to provide categories of documents at his deposition. Plaintiffs argue that Duke has produced everything requested, no relevant documents exist, or Defendants already have the documents Duke had reviewed. The Court has reviewed Duke’s deposition testimony and can identify only two sets of documents potentially not provided to Defendants: (1) email correspondence between Duke and Plaintiffs' counsel; and (2) articles written by Duke. As to the first category, Plaintiffs indicate that these emails contained no substantive information. While this does not excuse the failure to produce these emails, Defendants have provided the Court no reason to doubt Plaintiffs' representations. Defendants also did not press Duke on this issue at his deposition and never filed a motion to compel to obtain these documents (or sought permission from the Court to do so after the discovery cut-off). Failure to produce these documents therefore appears harmless. As to the second category, Plaintiffs probably should have produced articles written by Duke, but failure to do so is, again, harmless. Defendants did not press this issue and any published articles likely would be available in the public domain. The failure to produce these documents does not justify exclusion of Duke’s testimony at trial.

Therefore, the Court DENIES Defendants' motion to exclude Duke’s testimony on these grounds.

Alternatively, Defendants suggest that Duke’s testimony should be limited to his opinions at the time of his expert report, and any deposition testimony related to other documents he was shown after the report should be excluded from trial. The Court disagrees. Defendants were given the opportunity to examine Duke on any documents he later reviewed, even if those documents were not disclosed in his expert report. The Court does not endorse Plaintiffs' omissions in the expert report and suspects it was the result of hastily preparing it before the 30-day rebuttal expert deadline. Nevertheless, Defendants have not been prejudiced. Defendants are free to question Duke during trial on his expert report and any shortcomings in it, but the Court will not limit his testimony on this basis. Defendants' motion to limit Duke’s testimony is DENIED.

Defendants seek sanctions in the form of $1,230 in attorney’s fees and costs in deposing Duke and bringing the instant motion. Because Defendants did not prevail on this motion, the Court DENIES Defendants' request.

Defendants move to exclude several exhibits on the parties' Joint Exhibit List, which include: (1) the Los Angeles County Department of Sheriffs Policy and Procedure Manual (Ex. 25); (2) Plaintiff Khorrami’s correspondence attempting to obtain video footage from the West Hollywood Sheriff’s station (Exs. 19-24); and (3) the West Hollywood Sheriff’s Station phone log (Ex. 26). Defendants also move to exclude any testimony on additional video footage from the West Hollywood Sheriff’s Station other than the surveillance video of Plaintiff Khorrami in the holding cell.

Defendants move to exclude Exhibit 25, the LA County Sheriff’s Policy and Procedure Manual (the “Manual”), because Plaintiffs requested it via subpoena long after the discovery cut-off on November 30, 2007. Plaintiffs explain that they delayed in obtaining the Manual because Defendants' expert, Cope, did not rely on it in giving his report, making it necessary for Plaintiffs to highlight the contents of the Manual to cross-examine him. Plaintiffs fail to explain, however, why the Manual was not requested earlier, prior to the discovery cut-off. Certainly the Manual governing Defendants' actions as officers would be relevant to Plaintiffs' claims and Plaintiffs should have realized that long before Cope’s report was disclosed. Nevertheless, the Manual is Defendants' own document; they presumably have long been aware of it and its relevance to Plaintiffs' claims. They have demonstrated no prejudice from Plaintiffs' belated request, so the Court DENIES Defendants' motion to exclude Exhibit 25, the Manual, from trial.

Defendants move to exclude Exhibits 19-24, which are items of correspondence between Plaintiff Khorrami and others in the LA Sheriff’s Department regarding video footage at the West Hollywood Sheriff’s Station. This correspondence took place between August 5 and August 30, 2007. Defendants argue that these documents are irrelevant, misleading, and prejudicial.

*5 Relevant evidence is broadly defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Relevant evidence may be excluded, however, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403. “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.” United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000). Rule 403’s “major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” Id.

Plaintiffs claim that this correspondence is relevant to prove Plaintiff Khorrami’s state of mind that “he wanted to obtain the tapes because he knew [they] would support his version.” (Opp'n at 16:24-25 (emphasis in original).) First, this correspondence presumably does not directly illuminate Khorrami’s state of mind; in other words, he probably did not overtly say that he was seeking the tapes to prove his innocence.[3] At most, the jury would have to infer Khorrami’s state of mind from his requests. Second, Khorrami’s state of mind is not relevant to whether Defendants falsely arrested him or used excessive force on him, the only two claims in this case. Even if this evidence were relevant, moreover, the jury already can presume from the filing of the lawsuit itself that Khorrami thought his arrest was false and the force was excessive. Admitting these documents to establish that fact would muddy the relevant issues of his arrest for causeand the reasonableness of the force used on him, diverting the jury’sattention to Khorrami’s irrelevant state of mind. Defendants' motion to exclude this evidence is GRANTED.

Defendants seek to exclude telephone logs sought by Plaintiffs via their recent subpoena. Plaintiffs now inform the Court that no such logs exist. The Court DENIES Defendants' motion as MOOT.

Defendants move to exclude testimony that the Sheriff’s Station may have had video footage of Khorrami in the jail cell on February 16, 2007 that had since been erased by the way in which the video system is set up. The parties do not dispute that the video surveillance system operates on a continuous loop that erases old footage with new footage in as short a time as two weeks. Plaintiff Khorrami offers this evidence to suggest that Defendants spoliated video footage when they should have preserved it for trial.

“Defendants engage in spoliation of documents as a matter of law only if they had ‘some notice that the documents were potentially relevant’ to the litigation before they were destroyed.” United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (finding no spoliation of documents routinely destroyed after six years). Here, Plaintiff Khorrami has offered no evidence that Defendants were on notice of his civil rights claims that would create a duty to preserve any video evidence. Plaintiff Khorrami never lodged a complaint with the Sheriff’s Department regarding the pepper-spray incident and Plaintiffs did not file suit until one month after the incident occurred. Defendants learned of the suit only after being served with Plaintiffs' complaint in March 2007.

Plaintiffs argue that Defendants' knowledge of any potential claims by Khorrami is a dispute that must be resolved by the jury. However, Plaintiffs must offer enough evidence to bring that question to the jury in the first place. They claim that Khorrami “was extremely upset by the defendants' treatment of him. He repeatedly told them he was not drunk and that they had no lawful reason for arresting him.” (Opp'n at 18:9-11.) Most people in Khorrami’s position would be upset, but that does not put Defendants on legal notice that Khorrami would file a civil rights lawsuit against them. To conclude otherwise would burden police departments everywhere with the duty to retain all detention and jail cell video footage for years (at least as long as the statute of limitations on civil rights claims), which amounts to staggering terabytes of information that many departments are probably not equipped to handle or preserve. On this record, the Court will not impose that sort of burden. The Court GRANTS Defendants' motion to exclude this testimony.

*6 The Court rules as follows on Defendants' motions in limine:

IT IS SO ORDERED.

The facts of this case are set out in detail in the Court’s March 3, 2008 Order on summary judgment. The Court does not recite them again here, and will only discuss the facts relevant to the Court’s rulings herein.

Notably, Duke may not have even read Cope’s expert witness report before preparing his own report. In his report, Duke indicates that he relied only on Defendant Deputy Labayna’s Use of Force report, the Use of Force package prepared after the pepper-spray incident, and the surveillance video of the incident to form his opinions.

The parties did not provide the actual items of correspondence for the Court’s review.