A telephonic hearing was held on September 22, 2020. For the reasons discussed below, Defendants' Motions for Protective Orders against RFP Nos. 21 and 32 and the depositions of Huntsman and Kennedy are GRANTED, Plaintiff's Motion to Compel a person most knowledgeable regarding the Banditos deputy gang is DENIED, and Defendants' motion to compel further responses to RFP Nos. 35-43 is GRANTED.

A. Motion for Protective Order Against Plaintiff's Request for Production of Documents

1. RFP No. 21

Request No. 21 seeks records related to the comprehensive study of deputy cliques or deputy gangs generated by former County Sheriff Jim McDonnell. The Court finds that this study is protected by the official information privilege asserted by Defendants. At the telephonic hearing, defense counsel informed the Court that the study was originally undertaken by County Counsel and the Sheriff's Department, but when it failed to produce policy regarding deputy gangs or tattoos, the study was taken over by the RAND Corporation.[1] The RAND Corporation's study is still ongoing and incomplete.

Accordingly, the Court sustains Defendants' assertion of the official information privilege in response to RFP No. 21.[2] Defendants may withhold production of responsive records relating to any ongoing study until the study has concluded.

2. RFP No. 32

Request No. 32 seeks a list of the names of all deputies on the Sheriff's Department's so-called Brady list – which identifies employees with potential Brady material in their personnel files – that were working at the East Los Angeles precinct at the time of the incident. According to declarations by County Counsel Elizabeth Miller and Sheriff's Commander Scott Johnson, the Sheriff's Department prepared the list solely at the request of County Counsel for the purposes of providing legal representation. (See Dkt. 81-3 at 54, 72-73). It appears that the Sheriff's Department identified employees with potential Brady material in their personnel files prior to County Counsel's request, but the department would not have created a Brady list containing only the names of deputies from the East Los Angeles precinct at the time of the incident giving rise to this action but for the request by counsel and it was intended to remain confidential and “not be subject [to] disclosure during discovery.” (Id. at 54). See also, Dkt. 81-3 at 72-73). Absent any indication that this Brady list has been disclosed to a third party, the Court finds that the attorney-client privilege applies, and for that reason, the Court need not discuss Defendants' assertions regarding the work product doctrine.

*2 Accordingly, the Court sustains Defendants' assertion of the attorney-client privilege in response to RFP No. 32. Defendants' Motion for Protective Order is GRANTED.

B. Motion to Compel the Proper Person Most Knowledgeable

Plaintiff contends that Defendants failed to produce the person most knowledgeable (“PMK”) about the Banditos deputy gang for deposition, in accordance with Federal Rule of Civil Procedure 30(b)(6). Defendants produced Sgt. Paul Valle, an Internal Affairs Investigator with the Sheriff's Department, as the designated PMK about the Banditos gang out of the East Los Angeles station. Plaintiff argues that Sgt. Valle was not the proper PMK because he first learned about the Banditos gang four months prior to the deposition and, due to Sgt. Valle's involvement in the ongoing Sheriff's Department internal affairs investigation into deputy gangs, defense counsel objected to questions about his knowledge that was based on the official information privilege. (Dkt. No. 85 at 8). Neither of these reasons support a finding that Defendants produced an improper Rule 30(b)(6) witness, particularly where the Court previously ruled that Defendants may assert the official information privilege to questions about the ongoing investigation, and requests for records pertaining to the ongoing investigation. (See e.g., Dkt. Nos. 54, 68).

The parties agreed that the scope of the PMK deposition would be limited to the alleged “Banditos” deputy gang operating out of the East L.A. Sheriff's Station. See Dkt. 85 at 12-13; Exhs J and K; Dkt. No. 85-5 at 134, 140-41. Defendants appropriately designated Sgt. Valle, currently assigned to the ongoing investigation of the alleged “Banditos” deputy gang out of the East L.A. station as the PMK deponent, noting that Sergeant Hamil, who was originally assigned to the investigation, is on medical leave and not available. See Declaration of Paul Valle, ¶5; Dkt. No. 85-5 at 4. Plaintiff has failed to show that there is a person with a deeper breadth of knowledge of “deputy gangs operating out of the East L.A. Sheriff's station” whose knowledge is not based whatsoever upon the ongoing internal affairs investigation by the Sheriff's Department. Plaintiff only indicates that an alternative potential Rule 30(b)(6) witness exists because Sheriff Alex Villanueva and “other key figures from the COLA Sheriff's Department” have made public statements regarding the existence of deputy gangs. (Dkt. No. 85 at 22). This does not establish that Defendants could produce another PMK that would be able to testify about the limited scope of the PMK deposition noticed by Plaintiff.

Finally, the Court's review of the video deposition of Sgt. Valle (lodged as Exhibit G to Dkt. No. 85), does not impact the Court's ruling, nor does it compel the Court, at this time, to grant the parties' respective requests for sanctions. However, the parties are reminded that the presumptively mandatory fee-shifting provisions of Federal Rule of Civil Procedure 37(a)(5) apply to discovery litigation and abusive conduct in the course of discovery proceedings, and the Court reserves the right to order sanctions for non-compliance with its discovery orders and the filing of unsubstantiated motions.

*3 Accordingly, the Motion to Compel, including the parties' requests for sanctions, is DENIED.

C. Motion for Protective Order Against Depositions of Max Huntsman and Sean Kennedy

Plaintiff seeks to depose Inspector General Max Huntsman and Civilian Oversight Commission member Sean Kennedy. Defendants contend that both Huntsman and Kennedy cannot be deposed because they are entitled to the “apex” deposition privilege as high-ranking government officials.

Here, the Court need not decide whether Huntsman and Kennedy are entitled to the “apex” deposition privilege, because the extent of their knowledge relevant to Plaintiff's Monell claim can be addressed in a declaration. Plaintiff has not established that Huntsman possesses any knowledge of deputy gangs or other information relevant to Plaintiff's Monell claim, beyond the fact that the Sheriff's Department has either not investigated or intentionally delayed investigations on the issue of deputy gangs. (See Dkt. No. 90 at 8). Similarly, Plaintiff has not established that Kennedy possesses any knowledge of deputy gangs, or the Banditos gang specifically, beyond the information already detailed in a July 15, 2019 report overseen by Kennedy. (See Dkt. No. 90 at 13).

As such, Defendants' Motion for Protective Order is GRANTED. Defendants, however, are directed to provide declarations from Huntsman and Kennedy indicating their level of knowledge regarding the existence of deputy gangs and the Sheriff's Department's investigation into deputy gangs. The Court notes that Defendants submitted a declaration from Kennedy and Huntsman, but neither addresses the extent of their knowledge regarding deputy gangs and the Sheriff's Department's investigation into deputy gangs. (See Dkt. No. 89-1 at p. 17-19). Defendants are ordered to provide the declarations no later than October 2, 2020.

D. Defendants' Requests for Production, Nos. 35-43

Defendants' RFP Nos. 35-43 request the production of “any and all non-privileged documents” relating to or authored by Capt. Mejia (No. 35), relating to the September 27, 2018, Kennedy Hall event (No. 36), the Los Angeles County Department of Children and Family Services investigation (No. 37), communications with and payments to Carlos Estrada (Nos. 38-40), the December 2019 shooting [involving Defendant Perez] (No. 41), and Plaintiff's contentions that Defendants Perez and Rojas are or were “members of the ‘Banditos’ at the time of the incident.” (Nos. 42-43).

Plaintiff raises a number of boilerplate objections in her response to these discovery requests. (Submission, Exh. 2). The Court has previously cautioned the parties that “boilerplate objections do not suffice and there is no ground upon which to reasonably argue otherwise.” Marti v. Baires, No. 08-CV-00653, 2012 WL 2029720, at *5 (E.D. Cal. June 5, 2012) (emphasis in original); see Fed. R. Civ. P. 34(b)(2)(B) (“For each item or category, the response must either state that inspection ... will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.”) (emphasis added); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (“objections should be plain enough and specific enough so that the court can understand in what way the [discovery requests] are alleged to be objectionable”) (emphasis added). See May 11, 2020, Order Granting Plaintiff's Motion to Compel; Docket No. 53.

*4 Thus, Plaintiff's boilerplate objections as to relevance or admissibility, and her vague and unsubstantiated contentions that the requests are overbroad, burdensome and oppressive, equally available to Defendants, and contain proprietary or confidential information[3] – are OVERRULED.

To the extent Plaintiff claims that responsive documents in her possession, custody or control are protected by the attorney-client privilege or work product doctrine, Plaintiff must provide a privilege log that substantially complies with Form No. 11:A (Privilege Log) as set forth in the California Practice Guide: Federal Civil Procedure Before Trial (The Rutter Group 2020).

Plaintiff's claim, as to each RFP, that the information requested is not proportional to the needs of the case and that she does not have, in her custody, control or possession, “documents directly responsive to this request at this time,” is not a sufficient response. In responding to discovery requests, the responding party must affirmatively state “whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). “A proper written response should also provide sufficient information for the requesting party, and the court, to be satisfied that the responding party conducted an adequate investigation for responsive materials.” In re Rivera, No. CV 16-4676, 2017 WL 5163695, at *3 (C.D. Cal. Apr. 14, 2017); see Atcherley v. Clark, No. 12 CV 0225, 2014 WL 4660842, at *1 (E.D. Cal. Sept. 17, 2014) (“In responding to discovery requests, a reasonable inquiry must be made, and if no responsive documents or tangible things exist, the responding party should so state with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence.”) (citation omitted). Nor can Plaintiff unilaterally reserve the right to supplement her response “at any time up to and including the time of trial.” The Court may properly enforce “a discovery cutoff date [ ] to protect the parties from a continuing burden of producing evidence and to assure them adequate time to prepare immediately before trial.” Los Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924, 933 (9th Cir. 2002). “If a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

*5 To the extent Plaintiff contends that records responsive to these requests consist of “documents already produced in discovery as well as documents produced by defendants,” or are “equally available” to Defendants, Plaintiff must provide a reasonably specific description of such responsive documents or reference the responsive documents by bates number.

Accordingly, Defendants' motion to compel further responses to RFP Nos. 35-43 is GRANTED.

Plaintiff must provide supplemental responses to RFP Nos. 35, 36, 37, 38, 39, 40, 41 setting forth all efforts to locate responsive documents,

Plaintiff must provide supplemental responses to RFP Nos. 35, 36 setting forth the basis for her belief that responsive records will be discovered “in the course of discovery and investigation,” and the expected time frame for such discovery.

Plaintiff must provide supplemental responses to RFP Nos. 38, 40, 41, 42, 43, setting forth the basis for her belief that responsive records are “equally available” to Defendants, and with respect to RFP Nos. 41-43, a reasonable description of responsive documents (or bates number reference) “already produced in discovery as well as documents produced by defendants.”

During the hearing, Plaintiff's counsel agreed to produce supplemental responses within one week.

E. Conclusion

Defendants' motions for protective order [81] [89] are GRANTED, Plaintiff's Motion to Compel [85] is DENIED, and Defendants' motion to compel [96] is GRANTED.

The parties are encouraged to avail themselves of the Court's informal discovery dispute resolution process to resolve any remaining discovery issues. (See Judge Sagar's Procedures).

IT IS SO ORDERED.

cc: Philip S. Gutierrez

United States District Judge

During the hearing, Counsel for Defendants clarified that Defendants' recent production of a policy regarding deputy gangs and tattoos promulgated under Sheriff Villanueva's regime, does not pertain to Plaintiff's RFP No. 21. See Declaration of Elizabeth Miller, ¶¶ 3-5, Dkt. No. 81-3 at 53.

Having reached this conclusion, the Court declines to address Defendants' remaining objections to the production of this study, including assertions regarding the application of the attorney client privilege or work product doctrine.

Plaintiff has neither explained how each request is overbroad or burdensome nor provided any evidence describing the nature of the burden. see N. Am. Co. for Life & Health Ins. v. Philpot, No. 08 CV 270, 2009 WL 10672468, at *4 & n.2 (S.D. Cal. June 1, 2009) (overruling party's discovery objections because it did not quantify its asserted burden to producing the requested information). Plaintiff's confidentiality objections are not valid under Rule 26(b). Walt Disney Co. v. DeFablis, 168 F.R.D. 281, 283 (C.D. Cal. July 3, 1996) (“[O]nly privilege, not confidentiality, is a valid objection under Fed. R. Civ. P. 26(b).”). Moreover, the Protective Order issued in this case, (Dkt. No. 17), allows the parties to protect confidential, proprietary, or private information from improper public disclosure.