Clark v. City of Los Angeles
Clark v. City of Los Angeles
2021 WL 4731353 (C.D. Cal. 2021)
August 23, 2021

Castillo, Pedro V.,  United States Magistrate Judge

In Camera Review
Protective Order
Competency of Counsel
Search and Seizure
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Privilege Log
Attorney Work-Product
Possession Custody Control
Failure to Produce
Form of Production
Privacy
Video
Sanctions
Attorney-Client Privilege
Proportionality
Bad Faith
Cost Recovery
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Summary
The court granted Plaintiff's Amended Motion to Compel in part and denied it in part, ordering Defendants to produce any ESI that was responsive to Plaintiff's requests. The court also ordered Defendants to lodge copies of the Body Worn Video (BWV) footage they had produced to Plaintiff. The court also ordered Defendants to produce complaints against officers Covarrubias, Zavala, Meraz and Sergeants Burke and Wences for the five years prior to the incident relating to dishonesty and/or discrimination.
Additional Decisions
MURAD CLARK, Plaintiff,
v.
CITY OF LOS ANGELES, et al., Defendants
Case No. CV 20-10768 CAS (PVC)
United States District Court, C.D. California
Signed August 23, 2021

Counsel

Murad Clark, Los Angeles, CA, Pro Se.
James Victor Bilek, Cory M. Brente, J. Edwin Rathbun, Jr., Kathleen A. Kenealy, Scott D. Marcus, Los Angeles City Attorneys Office, Los Angeles, CA, Nicholas David Lauber, Garrett and Tully, Pasadena, CA, for Defendants.
Castillo, Pedro V., United States Magistrate Judge

ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S AMENDED MOTION TO COMPEL (Dkt. No. 36); (2) DENYING PLAINTIFF'S AMENDED MOTION FOR SANCTIONS (Dkt. No. 34); and (3) SUA SPONTE CONTINUING DEADLINE FOR FILING DISPOSITIVE MOTIONS

I.
INTRODUCTION
*1 Plaintiff, a California resident proceeding pro se, alleges that on December 18, 2019, he was subjected to a warrantless search of his car and person in an incident of racial profiling by the Los Angeles Police Department. Plaintiff's Complaint, which Defendants removed from the Los Angeles County Superior Court on November 25, 2020, raises numerous federal and state law claims. (Complaint, Dkt. No. 1, at 16-25).
Plaintiff originally filed a motion to compel further discovery responses on May 3, 2021, (Dkt. No. 22), and a motion for sanctions on May 24, 2021. (Dkt. No. 29). In the motion to compel, Plaintiff appeared to state that he had served requests for production on Defendants, but did not receive responses. (Dkt. No. 22 at 1-2). However, in the motion for sanctions, Plaintiff appeared to state that he had in fact received some discovery responses, but argued that sanctions were still warranted because defense counsel falsely accused him of malfeasance while he was taking Defendants' depositions. (Dkt. No. 29 at 2-3, 7). Because the state of discovery was unclear, on June 1, 2021, the Court held a Zoom conference in an effort to identify what, if any, outstanding discovery was necessary for the parties to prepare their claims and defenses. During the conference, Plaintiff admitted that he had received some discovery responses, but also argued that he was entitled to other discovery to which Defendants apparently had objected, and which had not been clearly put at issue in the motion to compel. Accordingly, on June 1, 2021, the Court issued a written order denying the motion to compel and the motion for sanctions, without prejudice to filing amended motions clearly identifying the discovery in dispute and the basis for Plaintiff's contentions.[1] (“Order,” Dkt. No. 33). The Order included a briefing schedule on any amended motions, and continued the deadline for filing dispositive motions, including motions for summary judgment, to September 7, 2021. (Id. at 5-6).
Pending before the Court are Plaintiff's Amended Motion to Compel, (“AMTC,” Dkt. No. 36), and Amended Motion for Sanctions, (“AMS,” Dkt. No. 34), both of which were filed on June 9, 2021. On July 2, 2021, Defendants filed an Opposition to the Amended Motion to Compel, (“Opp. AMTC,” Dkt. No. 40), supported by a declaration of J. Edwin Rathbun, Jr. (“Rathbun Decl. I,” id. at 10), and an Opposition to the Amended Motion for Sanctions, (“Opp. AMS,” Dkt. No. 41), also supported by a declaration of J. Edwin Rathbun, Jr. (“Rathbun Decl. II,” id. at 5).
*2 Because both Plaintiff's Amended Motions and Defendants' Oppositions contained certain curable defects, in the interest of justice the Court ordered the parties to file supplemental briefs. (Dkt. No. 45). Specifically, the Court ordered Plaintiff to file copies of all the discovery he had served, along with Defendants' responses, with a supplemental brief identifying which specific responses he is challenging in the Amended Motion to Compel. (Id. at 3). The Court ordered Defendants to file a declaration, pursuant to Chism v. Cnty. of San Bernardino, 159 F.R.D. 531, 532-33 (C.D. Cal. 1994), to support their invocation of the official information privilege and related defenses. (Id. at 4-6). The Court further required Defendants to lodge copies of the Body Worn Video (“BWV”) footage they had produced to Plaintiff. (Id. at 6). On July 20, 2021, Plaintiff filed a Supplemental Brief to which he attached not only the discovery he had served on Defendants and Defendants' responses, but also discovery served by the City of Los Angeles on Plaintiff, and Plaintiff's responses. (“P Supp. Brief,” Dkt. No. 48).[2] On July 23, 2021, Defendants filed a Supplemental Brief in Opposition to the Motion to Compel, (“D Supp. Brief,” Dkt. No. 46), including the declaration of LAPD Commander Timothy Nordquist. (“Nordquist Decl.,” id. at 6-19). Defendants also lodged the BWV footage required by the Court's order. (Dkt. No. 47).
The Court took the matter under submission without a hearing. For the reasons stated below, Plaintiff's Amended Motion to Compel is GRANTED IN PART and DENIED IN PART. The Amended Motion for Sanctions is DENIED. To the extent that additional responses are required by this Order, the deadline for service of the supplemental responses or for submission of potentially responsive documents for in camera review, as further addressed below, is fourteen days from the date of this Order. In order to permit the parties to complete any supplemental production and meaningfully review documents served in compliance with this Order, if any, the Court sua sponte continues the deadline for filing dispositive motions, including motions for summary judgment, from September 7, 2021 to November 8, 2021.
II.
ALLEGATIONS OF THE COMPLAINT
The Complaint sues the City of Los Angeles (the “City”), the Los Angeles Police Department (“LAPD”), LAPD Officers Covarrubias and Zavala, LAPD Sergeant Burke, and Doe Defendants 1-50. Officers Covarrubias and Zavala and Sgt. Burke (collectively, the “Individual Defendants”) are sued in both their individual and official capacities. (Complaint at 4-7).
Plaintiff states that he is a security officer (id. at 10) “of African American descent and, by physical appearance, ... a person of color.” (Id. at 4). At approximately 8:40 p.m. on December 18, 2019, Plaintiff was “legally parked in a cul-de-sac” at 1426 Channing St., Los Angeles, California 90021 “getting direction from his GPS device.” (Id. at 8). An LAPD vehicle pulled alongside Plaintiff's car and Officer Covarrubias, who was driving the patrol car, “shined a bright dome light ... into the driver side” of Plaintiff's car, where Plaintiff was sitting at the wheel. (Id.). Officer Covarrubias and two other officers “immediately jumped out of the patrol car.” (Id.). To see what the problem was, Plaintiff “stepped out of his vehicle to speak with [the] officers and was placed into handcuffs” without being given a reason. (Id.). Plaintiff states that one of the two officers accompanying Officer Covarrubias was Officer Zavala, while the other officer is described as “unidentified.” (Id. at 9).
Plaintiff was then taken behind his vehicle and was “forced to stand facing a fence” while Officers Covarrubias and Zavala searched his car, “even though plaintiff said he did not consent to any search.” (Id. at 8-9). During this time, the unidentified officer “subjected [Plaintiff] to random questioning.” (Id.). Officer Covarrubias became “noticeably frustrated after not being able to find anything illegal in plaintiff's car.” (Id. at 9). Officers Covarrubias and Zavala walked over to Plaintiff and “unbuckled his belt to look down his pants.” (Id.). Officers Covarrubias and Zavala also opened Plaintiff's trunk and “proceeded to remove all of plaintiff's personal property out onto the street.” (Id.).
*3 Plaintiff was detained “for two hours but [it] may have been longer,” after which he was “released without a ticket or citation or a reason for the stop.” (Id.). Plaintiff discovered that his Sony tablet was missing from the property that Defendants removed from his trunk, and $150 was missing from his glove compartment. (Id.). Plaintiff alleges that he did nothing to justify a warrantless search and was “profiled and considered to be a suspect because of the fact that [he is] black.”[3] (Id. at 10).
Plaintiff travels in the area where he was detained approximately once or twice a month and has a “valid and reasonable fear that he will be stopped by the LAPD again in the future solely on the basis of his race.” (Id.). Plaintiff claims that the LAPD has a “long history of racial profiling” and “discriminates against motorists of color in general and black motorist[s] in particular.” (Id.). He further alleges that officers are encouraged as a matter of LAPD and City of Los Angeles policy to use purported minor traffic violations as an excuse to search minority motorists' cars for drugs or guns. (Id. at 11-12). LAPD supervisors are aware that officers engage in racial profiling but refuse to stop it. (Id. at 13). As a result of Defendants' violation of Plaintiff's “legal and constitutional rights,” Plaintiff has suffered “humiliation, mental pain and suffering.” (Id. at 16).
The Complaint raises fourteen causes of action: (1) race discrimination in federally funded programs, in violation of Title VI of the Civil Rights Act (LAPD and City); (2) equal protection under the 14th Amendment for a “pattern and practice of intentional race discrimination and pretextual race based stops” (Individual Defendants); (3) unreasonable searches and seizures under the 4th and 14th Amendments for “lengthy detentions, interrogations and searches without probable cause” (Individual Defendants); (4) violation of the Commerce Clause, U.S. Constitution, Art. IV, and the Fourteenth Amendment for interference based on race in Plaintiff's “exercise of his fundamental right to interstate travel and migration” (Individual Defendants); (5) denial of Plaintiff's “right to full and equal benefit of the laws” under 42 U.S.C. § 1981 (Individual Defendants); (6) conspiracy to violate civil rights under 42 U.S.C. §§ 1985 & 1986 (Individual Defendants); (7) violation of California Government Code §§ 11135 & 11139 (all Defendants); (8) violation of California Constitution Art. 1, sec. 7(a) (all Defendants); (9) violation of California Constitution Art. 1, sec. 13 (all Defendants); (10) violation of Bane Act, California Civil Code § 52.1 (all Defendants); (11) intentional infliction of emotional distress (all Defendants); (12) negligent infliction of emotional distress (all Defendants); (13) false imprisonment (all Defendants); and (14) request for a declaration that Defendants violated Plaintiff's rights under the United States and California constitutions (all Defendants). (Id. at 16-25). Plaintiff prays for declaratory and injunctive relief; compensatory, punitive and statutory damages; attorney's fees and expenses; and “such other and further relief as the court may deem just and proper.” (Id. at 26-27).
III.
STANDARDS
A. Scope of Permissible Discovery
*4 Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:
Parties may obtain discovery regarding 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. “The relevance standard is commonly recognized as one that is necessarily broad in scope in order ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)); see also Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017) (“Even after the 2015 amendments, courts continue to recognize that discovery relevance remains ‘broad’ in scope.”); Wagafe v. Trump, 2018 WL 348470, at *1 (W.D. Wash. Jan. 10, 2018) (“[T]the scope of discovery is broad.”). “Proportionality focuses on the marginal utility of the discovery sought.” In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D. N.Y. 2016) (internal quotation marks and citation omitted).
While the scope of permissible discovery may be broad, because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. The 2015 amendments to Rule 26 “were designed to protect against over-discovery and to emphasize judicial management of the discovery process, especially for those cases in which the parties do not themselves effectively manage discovery.” Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 308 (S.D. Ind. 2016); see also Davita HealthCare Partners, Inc. v. United States, 125 Fed. Cl. 394, 398 (2016) (the 2015 amendments to the Federal Rules “contribute to the overall goal of regulating the time and expense of litigation”). However, the larger and more complex the case, the more even relatively voluminous discovery may be considered proportional. The party resisting discovery bears the burden of showing why discovery should not be allowed. Doutherd v. Montesdeoca, 2018 WL 3008867, at *2 (E.D. Cal. June 15, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
B. Requests for Production of Documents Under Rule 34
Federal Rule of Civil Procedure 34(a) requires production of responsive documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). “The phrase ‘possession, custody or control’ is in the disjunctive and only one of the numerated requirements need be met.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). “Control is defined as the legal right to obtain documents on demand.” United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).
*5 Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1). “The test for reasonable particularity is whether the request places a party upon reasonable notice of what is called for and what is not.” Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (internal quotation marks omitted); see also Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649-50 (10th Cir. 2008) (“Though what qualifies as ‘reasonabl[y] particular’ surely depends at least in part on the circumstances of each case, a discovery request should be sufficiently definite and limited in scope that it can be said ‘to apprise a person of ordinary intelligence what documents are required and [to enable] the court ... to ascertain whether the requested documents have been produced.’ ”) (quoting Wright & Miller, 8A Federal Practice and Procedure § 2211, at 415).
At the same time, a responding party has “an obligation to construe ... discovery requests in a reasonable manner.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007); see also McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....”) (internal quotation marks omitted); King-Hardy v. Bloomfield Board of Education, 2002 WL 32506294, at *5 (D. Conn. Dec. 8, 2002) (responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity). Particularly when the propounding party is proceeding pro se, the Court expects that a responding party represented by counsel will construe discovery requests liberally, as the Court is also required to do. See Henry v. Chapa, 2009 WL 602993, at *1 (E.D. Cal. Mar. 6, 2009) (“The Court must construe the motion to compel discovery liberally because Plaintiff is proceeding pro se.”); Willis v. Ritter, 2007 WL 2455873, at *1 (S.D. Cal., Aug. 24, 2007) (noting that “[t]he rule of liberal construction is ‘particularly important in civil rights cases’ ” and “also applies to discovery propounded by pro se litigants”) (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)); Simmons v. Arnett, 2018 WL 6133677, at *2 (C.D. Cal., Apr. 24, 2018) (“Because Plaintiff is proceeding pro se, the Court liberally construes his discovery requests and does not hold him to the same standards as a represented party”) (citing Ferdik, 963 F.2d at 1261, and Willis, 2007 WL 2455873, at *1-*2); Mascrenas v. Wagner, 2021 WL 1158190, at *3 (S.D. Cal. Mar. 26, 2021), reconsideration denied, 2021 WL 2714662 (S.D. Cal. July 1, 2021) (applying liberal construction to document request and ordering production as construed).
Following a reasonable investigation to locate responsive materials, a responding party must serve a written response to each request either stating that it will produce copies of the documents requested or identifying the grounds for any objection. The December 1, 2015 revisions to the Federal Rules amended Rule 34 to require the responding to assert any objections to requests for production with specificity, and to affirmatively state in its responses to the requests whether any documents are being withheld pursuant to an objection. The 2015 Advisory Committee Notes to Rule 34 explain:
Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language from Rule 33(b)(4) [pertaining to interrogatories], eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection ... [¶] Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection.... [T]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.
*6 Fed. R. Civ. P. 34, Advisory Committee Notes (2015 Amendment).
Because Rule 34 requires that objections be stated with specificity, boilerplate assertions of any type, including assertions of attorney-client privilege, the work product doctrine, confidentiality, etc. are improper in federal court. See, e.g., Walker v. Lakewood Condo. Owners Ass'n, 186 F.R.D. 584, 587 (C.D. Cal. 1999) (“Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.”); A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (“[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper -- especially when a party fails to submit any evidentiary declarations supporting such objections.... Similarly, boilerplate relevancy objections, without setting forth any explanation or argument why the requested documents are not relevant, are improper.”); Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 379 (C.D. Cal. 2009) (“[U]nexplained and unsupported boilerplate objections are improper.”); Burlington Northern & Santa Fe Ry. Co. v. United States Dist. Court, 408 F.3d 1142, 1147 (9th Cir. 2005) (boilerplate privilege assertions are ineffective, and a failure to properly assert a privilege may “waive or otherwise abandon the privilege”). Similarly, several courts have rejected boilerplate assertions that a discovery request is “disproportionate” and require that “objections based on proportionality” be “explained with specificity.” Polycarpe v. Seterus, Inc., 2017 WL 2257571, at *4 (M.D. Fla. May 23, 2017); see also Fed. R. Civ. P. 26 advisory committee notes (2015 amendments) (restoration of the “proportionality calculation to Rule 26(b)(1)” was not “intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional”).
At the same time, the court cannot order a party to produce documents that do not exist. A mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., Bethea v. Comcast, 218 F.R.D. 328, 329 (D. D.C. 2003) (requesting party's suspicion that responding party failed to produce responsive documents does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D. D.C. 2000) (a party's mere suspicion that its opponent must have documents that it claims not to have does not warrant granting a motion to compel). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (defendants' assertion that they are unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”); Ayala v. Tapia, 1991 WL 241873, at *2 (D. D.C. Nov. 1, 1991) (denying motion to compel where moving party could not identify documents that were withheld).
IV.
DISCUSSION
A. Amended Motion to Compel
1. The Parties' Contentions
*7 Plaintiff clarifies in his Supplemental Brief that he is challenging the City's objections to his Requests for Production (“RFP”) Nos. 6, 13, 33, 34, 35, 42 and 43. These Requests collectively seek documents in LAPD's possession, including but not limited to Defendants' personnel files, investigations of both the incident at issue and other incidents of misconduct involving Defendants, and force-wide data concerning the frequency of racial profiling by LAPD officers. Plaintiff asserts that he requires these documents to determine whether the “defendant officers have a pattern or history of singling out black drivers ... for traffic stops, detentions and searches,” (AMTC at 5), and the City's awareness of unlawful racially-based traffic stops, detentions and searches. (Id. at 6). Plaintiff states that he requires copies of all complaints from the public alleging racial profiling for the last five years, “whether they were sustained or not.” (Id. at 7). According to Plaintiff, while Defendants have produced some documents in response to his RFPs, they are “refusing to produce Monell-related documents.” (Id.). Plaintiff seeks information about all LAPD officers, including their names, with three or more complaints filed against them since 2015. (Id. at 8). Plaintiff also seeks documents showing the “racial makeup of Defendant LAPD officers detentions, traffic stops, and searches along with the outcome of each stop.” (Id. at 11). Plaintiff contends that he is entitled to these records because California Senate Bill 1421 opened certain kinds of police records to public inspection. (Id. at 12).
Plaintiff additionally asserts that because he does not speak Spanish, the City must provide a transcript or English subtitles for the parts of Officer Zavala's BWV where he is speaking Spanish. (Id. at 9). Furthermore, Plaintiff complains that the “watermark” imposed on all of the BWV Defendants have produced must be “repositioned or reduced in size” because it is obscuring “the part where officer Moises is seen putting his gun back in his holster.” (Id.).
Defendants state in opposition to the MTC that they produced 105 pages of documents and a privilege log in response to Plaintiff's RFPs on February 23, 2001. (Opp. AMTC at 2). Defendants complain that Plaintiff's requests for all complaints of any kind filed against the Individual Defendants are overbroad, unduly burdensome, unreasonable as to time and scope, and not proportional to the needs of this case. (Id. at 3). Furthermore, Defendants contend that just because Plaintiff has asserted a Monell claim does not mean that he is entitled to all complaints against an officer, particularly because the complaints may have arisen from “random or isolated incidents” that would not show a pattern or practice. (Id.). Defendants assert that the information sought is protected from disclosure pursuant to various state statutes and doctrines. While Defendants acknowledge that this case is venued in federal court, they argue that the “cited state privileges are important and persuasive because they provide the context for internal police investigations.” (Id. at 4-5). Defendants also argue that the admission of information concerning unrelated incidents of misconduct prior or subsequent to the incident at issue in the Complaint would “serve only one purpose,” i.e., to show that the officers acted in conformity with the other incidents, which would be unduly prejudicial, misleading to the jury, and would risk confusing the relevant issues. (Id. at 5). Defendants reassert these same arguments in connection with Plaintiff's other production requests for information from internal affairs files and about public complaints. (See id. at 6). Defendants also state that the request for information about the “racial makeup” of LAPD's detentions, traffic stops and searches is vague and ambiguous, and unduly burdensome because responding to it would require an individualized review of the files of nearly every LAPD officer, redaction of large amounts of private information, and encompass much irrelevant material. (Id. at 8). Additionally, because Plaintiff was not detained pursuant to a “traffic stop,” information about traffic stops is irrelevant to Plaintiff's claims. (Id.).
With respect to the request for subtitles to Officer Zavala's BWV footage, Defendants assert that they produced the videos in their native format and do not provide subtitles or translations. (Id. at 7). As to Plaintiff's complaints about the “watermark” on the videos, which simply identifies the material as confidential and limited for use in this case only, Defendants state that they are permitted to designate materials as confidential pursuant to the Protective Order and are entitled to ensure that the videos are not distributed to the public or the media. (Id. at 7-8).
*8 In Defendants' Supplemental Brief, Defendants argue that Plaintiff's requests are “so overbroad and non-specific as to encompass the entirety of Los Angeles Police Department sworn personnel,” and note that neither the City Attorney's Office nor the LAPD has the resources to conduct the searches that would be required by Plaintiff's disputed requests. (D. Supp. Brief at 4). However, Defendants state that:
If the Court is inclined to grant any part of the Plaintiff's motion as it relates to Defendant Officers and prior complaints, the City will agree to produce unrelated Internal Affairs investigations for the five-year period preceding the date of the subject traffic stop, wherein the officers were accused of engaging in an unlawful detention, biased policing in relation to a traffic stop and false imprisonment in relation to a traffic stop. The City is not agreeing to produce the officers' personnel files as those files often contain, sensitive private information about officers, dependents and spouses which is not probative of any issue in this litigation.
(Id. at 5) (emphasis omitted).
Defendants also attach the Declaration of Commander Timothy Nordquist in support of their assertion of the Official Information Privilege. (Id. at 6-19) (continuous pagination). Commander Nordquist asserts that documents produced and maintained by the LAPD, including police officers' personnel files, background investigation reports and personnel complaints, are kept in the expectation that the contents of the files will not be subject to disclosure. (Id. at 6, ¶¶ 1-2). The Department expects that the contents of personnel files will remain confidential as the disclosure of personal information could subject the officers and their families to danger, and may contain private personal information that could be subject to misuse. (Id. at 8, ¶ 2). Officers are required to be truthful in their background checks, and there is a risk that officers might be less candid if they knew that the contents of the investigations could be disclosed to the public. (Id.). Similarly, Commander Nordquist states that disclosing officers' training records, which may be used by the Department in internal investigations to determine whether there are individual or departmental deficiencies, would discourage the Department's efforts to self-police and have an adverse effect on accurate and honest evaluations of officers during performance evaluations. (Id. at 10, ¶¶ 4-5). Furthermore, Commander Nordquist argues that a Protective Order would not be sufficient to curb “verbal release of confidential information,” even it prohibits the dissemination of documents. (Id. at 10, ¶ 5). The LAPD keeps complaints against officers longer than required by law for internal review purposes, but dissemination of the complaints could lead to a more frequent purge of the records for periods beyond the period the Department is required by law to keep them. (Id. at 11, ¶ 6). The “[u]nfettered release of hiring data, application information and pre-hiring background investigations,” which encompass much personal information irrelevant to a civil rights action, would have “untold negative results” and have a harmful effect on the privacy interest of individual officers. (Id., ¶ 8). Commander Nordquist also contends that plaintiffs may obtain information about the officers' version of the events by deposing them. (Id. at 13, ¶ 10). Witnesses may also be reluctant to testify if their statements do not remain confidential. (Id., ¶ 11).
*9 In sum, Commander Nordquist maintains that disclosure of the types of documents Plaintiff seeks would have a dampening effect on officers' willingness to be forthright during investigations and impede the “self-critical analysis process.” (Id. at 14, ¶ 14). Furthermore, broad disclosure would violate state and federal constitutional rights to privacy. (Id. at 16, ¶ 18). The Department is also concerned about the safeguards, or lack thereof, that would require Plaintiff to maintain the security of the documents and information that may be produced, (id. at 17, ¶ 19), and worry that Plaintiff may misuse the information to embark on further “fishing expeditions” or to bring subsequent unwarranted litigation. (Id. at 17-18, ¶¶ 20-22).
2. Requests for Production in Dispute
RFP No. 6: All LAPDs personnel files of officers Covarrubias, Meraz, Zavala, Burke and Wences. (Dkt. No. 48-15 at 8).
Response to RFP No. 6: Objection. The Request is overbroad and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Responding Party also objects on the grounds that this Request seeks information that is confidential, privileged and protected from discovery pursuant to California Evidence Code Section 1043 and California Penal Code Sections 832.5, 832.7 and 832.8, and the privilege of self-critical analysis. In addition, Responding Party objects on the grounds that this Interrogatory [sic] seeks information which is privileged pursuant to California Evidence Code, sections 1040 et seq. and California Government Code Section 6254. Responding Party further objects on the ground that disclosure of the requested information would violate the privacy rights of any involved police officers under the “official information” or “governmental privilege” accorded under Federal Law. Some information is not subject to disclosure absent prior in-camera judicial review to determine whether the need for continued confidentiality is outweighed by the litigant's needs for the information sought. Kerr v. United States District Court, 511 F.2d 192 (9th Cir. 1975), aff. 426 U.S. 394, 96 S.Ct. 2119 (1976); Martinez v. City of Stockton, 132 F.R.D. 677 (E.D. Cal. 1990); Kelly v. City of San Jose, 114 F.R.D. 653 (N.D. Cal. 1987); Cal. Constitution, Art. I Sec. I; Cal Pen. Code, sections 832.5, 832.7, 832.8; Cal. Evid. Code, sections 915, 944, 1012, 1040 et seq., 1043 et seq.; Cal. Gov. Code, section 6254. The information requested is protected by the privilege and doctrine of self-critical analysis. See, Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423 (9th Cir. 1992). (Dkt. No. 48-15 at 8-9).
DECISION:
Several of Defendants' objections are defective, apart from the unnecessary repetition of the same objections in the same response and the internal reference to this request for production of documents as an “interrogatory.” Most importantly, the repeated reliance on California law in this federal action appears misplaced. Where, as here, “ ‘there are federal question claims and pendent state law claims present, the federal law of privilege applies.’ ” In re TFT-LCD (Flat Panel) Antitrust Litig., 835 F.3d 1155, 1158 (9th Cir. 2016) (quoting Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005)); see also Wilcox v. Arpaio, 753 F.3d 872, 875 (9th Cir. 2014) (where “the same evidence relates to both federal and state law claims ... federal privilege law governs”). The Complaint purports to raise federal claims under Title VI, 42 U.S.C. §§ 1981, 1985 and 1986, and the Fourth and Fourteenth Amendments to the United States Constitution, in addition to Plaintiff's statutory, constitutional, and common law claims arising under state law. (Complaint at 16-25). The same evidence relates interchangeably to Plaintiff's federal and state claims. As such, federal law of privilege, not state law, controls, which is a choice Defendants made when they removed this action from state to federal court. See Chatman v. Felker, 2009 WL 173515, at *9 (E.D. Cal. Jan. 23, 2009) (expressly rejecting objections based on Cal. Penal Code §§ 823.7 & 6126.3(c)(1), Cal. Evid. Code §§ 1043 & 1046, and Cal. Gov. Code § 6254(f) on the ground that state privilege law does not control in federal court). While the Court appreciates that Defendants may have cited state law privileges in their objections simply to emphasize the importance of the state interests implicated by those privileges and Defendants' reasonable expectations of privacy, the near-exclusive reliance on state law in the objections is misleading and not a proper ground for asserting objections in federal court without at least substantial qualification.[4]
*10 Furthermore, the implication that in camera review is required before production may be ordered is, at a minimum, misleading. “[I]n camera review is generally disfavored.” Newport Pac. Inc. v. Cnty. of San Diego, 200 F.R.D. 628, 633 (S.D. Cal. 2001). The Supreme Court instructs that a court should not conduct an in camera review solely because a party requests it. United States v. Zolin, 491 U.S. 554, 571 (1989). As a threshold matter, there must be a sufficient evidentiary showing that creates a legitimate issue as to the application of the privilege asserted before in camera review may even be considered. Id.see also Rock River Commc'ns, Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 353 (9th Cir. 2014) (failure to conduct in camera inspection for crime-fraud exception to attorney-client privilege not an abuse of discretion where requesting party had not shown a “factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged”) (quoting In re Grand Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992)); Ramirez v. Cnty. of Los Angeles, 231 F.R.D. 407, 410 (C.D. Cal. 2005) (in camera review not necessary where defendant failed to make initial showing that official information privilege applies); Medina v. Cnty. of San Diego, 2014 WL 4793026, at *12 (S.D. Cal. Sept. 25, 2014) (“The Court is not required to conduct an in camera review of documents where Defendants have not made a sufficient threshold showing that the records are privileged [under the official information privilege].”). Indeed, in Kerr, the case specifically cited by Defendants for the proposition that an in camera review is required following an assertion of the “official information” or “governmental” privilege, the Ninth Circuit expressly declined to address that issue because the government had failed to adequately assert the privilege. Kerr, 511 F.2d at 198 (“But we do not have to reach the question of whether [the official information] privilege extends to these documents or if a further protective order in the nature of in camera inspection was necessary before allowing disclosure. The governmental privilege must be formally asserted and delineated in order to be raised properly.”).
Even once a threshold showing is made demonstrating that in camera review of materials may establish the application of a privilege, “the decision whether to conduct the review rests within the discretion of the district court.” In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992); see also Zolin, 491 U.S. at 572 (“[T]he decision whether to engage in in camera review rests in the sound discretion of the district court.”); accord Dolby Lab'ys Licensing Corp. v. Adobe Inc., 402 F. Supp. 3d 855, 864 (N.D. Cal. 2019). The Supreme Court instructs that “[t]he court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish” that the privilege applies. Zolin, 491 U.S. at 572.
However, the essence of Defendants' objections is that the officers' personnel files are protected from disclosure pursuant to the official information (or governmental) privilege and the officers' right to privacy. Accordingly the Court will address those objections in turn.
a. Official Information Privilege
As the Court has previously explained, “[f]ederal common law recognizes a qualified privilege for official information” such as government personnel files. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990). To determine whether the information sought is privileged, “courts conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege.” Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) (citing Sanchez, 936 F.2d at 1033-34). Several courts have noted that this balancing analysis raises special considerations in civil rights suits against police departments. See e.g., Soto, 162 F.R.D. at 612; Kelly, 114 F.R.D. at 660. Specifically, in weighing the competing interests of the parties, courts should consider that “the policies that inform federal civil rights laws are profoundly important” and that “confidence in our system of justice ... is threatened when relevant evidence is not made available ....” Id. Furthermore, “in civil rights cases against police departments in general, it is not likely that plaintiffs can obtain information of comparable quality from any other source.” Soto, 162 F.R.D. at 616. Accordingly, in such cases, the balancing is “moderately pre-weighted in favor of disclosure.” Kelly, 114 F.R.D. at 661; Miller v. Pancucci, 141 F.R.D. 292, 300 (C.D. Cal. 1992) (allowing discovery of police department personnel files, including personnel complaints, training records, and internal affairs investigation files).
*11 Before the court engages in the balancing analysis, however, the party asserting the official information privilege must make a “substantial threshold showing.” Kelly, 114 F.R.D. at 669. To make the threshold showing, Defendants must submit a declaration to the court from the head of the department having control over the records and must satisfy certain requirements. Chism v. Cnty. of San Bernardino, 159 F.R.D. 531, 532-33 (C.D. Cal. 1994). The declaration must include the following:
(1) an affirmation that the agency generated or collected the material in issue and has maintained its confidentiality; (2) a statement that the official has personally reviewed the material in question; (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer; (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, and (5) a projection of how much harm would be done to the threatened interests if disclosure were made.
Chism, 159 F.R.D. at 533; Hampton v. City of San Diego, 147 F.R.D. 227, 230-31 (S.D. Cal. 1993); Miller, 141 F.R.D. at 301. In addition to these factors, “[a] strong affidavit would also describe how the plaintiff could acquire information of equivalent value from other sources without undue economic burden.” Soto, 162 F.R.D. at 613.
b. Right to Privacy
“Federal Courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.” Soto, 162 F.R.D. at 616 (citing, inter alia, Breed v. United States Dist. Ct. for Northern District, 542 F.2d 1114, 1116 (9th Cir. 1976), and Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992)). “Unlike a privilege, the right of privacy is not an absolute bar to discovery. Rather, courts balance the need for the information against the claimed privacy right.” Lind v. United States, 2014 WL 2930486 at *2 (D. Ariz. June 30, 2014); see also E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“[T]he right to privacy is not a recognized privilege or absolute bar to discovery, but instead is subject to the balancing of needs.”); Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 (C.D. Cal. 1995) (same); Soto, 162 F.R.D. at 616 (“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.”).
DECISION:
Here, the Court finds that Defendants have failed to make a sufficient showing for a blanket application of the official information privilege; nor does the officers' right to privacy absolutely shield their personnel files from disclosure. However, the Court also finds that disclosure of the entire personnel files of the officers is not warranted. Accordingly, Plaintiff's Motion to Compel further responses to RFP No. 6 is GRANTED IN PART. Because Plaintiff has alleged an incident of racial profiling and an unlawful search of his person and vehicle by officers Covarrubias, Meraz and Zavala, disclosure of prior complaints against these three officers where they were accused of engaging in an unlawful detention, biased policing and false imprisonment in relation to a traffic stop is warranted. Also, because Plaintiff has raised a Monell claim, and because Sergeants Burke and Wences investigated Plaintiff's complaint related to the stop and search of his person and his vehicle, the Court finds disclosure of prior complaints accusing Sergeants Burke and Wences of engaging in an unlawful detention, biased policing and false imprisonment in relation to a traffic stop is warranted. The Court orders disclosure of such complaints against the three officers and two sergeants, as limited by this Order, for the five years preceding the incident. Furthermore, this information will be subject to the Protective Order in place in this case and Plaintiff is admonished that he shall not disseminate this information in any manner outside of this litigation.
*12 If Defendants determine that it is necessary for the Court to conduct an in camera review of these documents prior to production, in the interest of expediency, Defendants are ORDERED to submit the documents to the Court no later than fourteen days from the date of this Order in lieu of serving them directly on Plaintiff. The documents may be sent either in hard copy by U.S. Mail to chambers or electronically to the Court's chambers email address at: PVC_Chambers@cacd.uscourts.gov. Simultaneously with the submission of the documents for in camera review, Defendants shall file a “Notice of Manual Lodging” affirming that documents have been mailed/emailed to the Court for in camera review, but without attaching the documents as exhibits. For Defendants' convenience, a blank form “Notice of Manual Filing or Lodging” is attached (Central District Form G-92), which Defendants may use to comply with the Notice requirement. Consistent with L.R. 79-6.1, Defendants shall not serve copies of the documents submitted for in camera review on Plaintiff unless otherwise ordered by the Court in a later order. Based on Defendants' representations in the Opposition, the Court deems that Defendants have adequately satisfied the provisions in L.R. 79-6.2 requiring a particularized request for in camera review, and therefore need not make another request with the in camera submission.
RFP No. 13: All unredacted records of officer Moises and Zavala's traffic stops and searches (race of person time it took) while working as a gang officer. (Dkt. No. 48-15 at 12).
Response to RFP No. 13: Responding Party incorporates the preliminary statement and general objections above by reference. Responding Party objects on the grounds that the request is compound, harassing, overly broad, unduly burdensome, vague and ambiguous. Responding Party objects to this request on the grounds that it does not describe the documents requested with reasonable particularity. Further the request seeks information which is not reasonably calculated to lead to the discovery of admissible evidence. This Request also seeks documents protected by third party privacy rights. (Dkt. No. 48-15 at 13).
DECISION:
Defendants' objections to RFP No. 13 also raise some concerns. As with the other disputed responses, Defendants fail to state whether they are withholding any responsive documents pursuant to the objections asserted here, even though Rule 34(b)(2)(C) requires that an objection must state whether any responsive materials are being withheld on the basis of an objection. Furthermore, the boilerplate “incorporation by reference” of general objections is entirely improper in federal court. Defendants' General Objections object to the production requests “to the extent” that they violate the attorney-client privilege, the work-product doctrine, or any other “applicable [but unstated] privilege or protection.” (Dkt. No. 48-15 at 3). Defendants also generally object to the extent that any requests seek information that is protected from “compelled disclosure” under the state or federal constitutions, or that is irrelevant, or not in Defendants' possession, custody or control. (Id.). These boilerplate objections do not inform Plaintiff whether Defendants are asserting that any of those privileges actually apply to RFP No. 13, whether Defendants contend that disclosure of the information sought by RFP No. 13 is constitutionally protected, or whether Defendants believe the information sought by RFP No. 13 is irrelevant.
Defendants also assert boilerplate objections “specifically” in response to this RFP, such as “compound, harassing, overly broad, unduly burdensome, vague and ambiguous.” Additionally, Defendants complain that RFP No. 13 fails to identify the information it is seeking with “reasonable particularity,” which is simply another way of stating that the production request is vague and ambiguous, and that it is not “reasonably calculated to lead to the production of admissible evidence.” However, Defendants do not explain why it would be unduly burdensome to respond to the request, or what about it is “vague and ambiguous.” To the extent that Defendants complain that the request is “compound,” perhaps because RFP No. 13 seeks documents relating to two different officers, Defendants are reminded that they are required to construe pro se discovery requests liberally and reasonably. If Defendants have questions about the scope of a request, the better practice, even with pro se litigants, is to reach out to the propounding party for clarification. In essence, Defendants' boilerplate objections, whether asserted in the General Objections or in the response to a particular production request, are tantamount to asserting no objections at all, and could be denied on that ground alone. See, e.g., Doc's Dream, LLC v. Dolores Press, Inc., 2018 WL 11311293, at *6 (C.D. Cal. Feb. 14, 2018) (“All of defendants' General Objections are boilerplate, non-specific, and unsupported. The Court generally agrees with plaintiff that these objections are improper and should not be considered in defendants' responses. Accordingly, the objections listed in the introductory ‘General Objections’ section of defendants' supplemental responses to plaintiff's RFA (Sets One and Two) are all overruled.”).
DECISION:
*13 The Court finds that this request seeking records of any traffic stops and searches by officers Moises Covarrubias and Jose Zavala while working as gang officers is patently overbroad. The request is vague, as it is unclear whether Plaintiff seeks reports of these two officers while working together or independently, and is not tied to the allegations contained in the complaint, i.e. traffic stops which involved African-Americans or were pretextual. Furthermore, there is no limit on the time period. Finally, the request appears to be unduly burdensome, as it is not clear how Defendants would conduct such a search in order to provide responsive documents. Accordingly, Plaintiff's Motion to Compel further responses to RFP No. 13 is DENIED.
RFP No. 33: All notes in the District attorney's files regarding officer Moises Covarrubias, officer Jose Zavala, officer Enrique Meraz, Sgt. Christopher Burke, and Sgt. Caesar Wences. (Dkt. No. 48-15 at 27).
Response to RFP No. 33: Responding Party incorporates the preliminary statement and general objections above by reference. Responding Party objects on the grounds that this request specifically requests documents in the possession, control, and custody of a third party. To that extent, propounding this request to Responding Party is harassing. (Dkt. No. 48-15 at 27).
DECISION:
A responding party is required to produce only those documents in its possession, custody or control. The City of Los Angeles Police Department is obviously a city agency. RFP No. 33 is fundamentally vague and ambiguous because it is unclear whether the specific reference to the “district attorney's files” is actually intended to identify the Los Angeles City Attorney's Office, which serves as a legal advisor to the City, represents the City in civil litigation, and prosecutes misdemeanor offenses and infractions, or the Los Angeles County District Attorney's Office, which prosecutes felony crimes throughout Los Angeles County and misdemeanor offenses in unincorporated areas. While the City Attorney's Office is a city agency, it is not a part of the LAPD and it is unclear what kinds of records Plaintiff believes it might have that would be relevant to this case. Furthermore, under California law, a county district attorney “represents the state, not the county, when preparing to prosecute and when prosecuting crimes, and when establishing policy and training employees in these areas.” Pitts v. Cnty. of Kern, 17 Cal. 4th 340, 346 (1998). However, when the district attorney performs an administrative function that does not directly involve the prosecution of cases, the Ninth Circuit has found that the district attorney “represents the county when establishing policy and training ....” Goldstein v. City of Long Beach, 715 F.3d 750, 762 (9th Cir. 2013). Accordingly, because the Los Angeles County District Attorney's Office, which is seemingly targeted by this request, is not a city agency, regardless of the function performed, it, too, is obviously not a part of the LAPD or under the LAPD's control.
“The party seeking production of the documents ... bears the burden of proving that the opposing party has such control.” Int'l Union of Petroleum & Indus. Workers, 870 F.2d at 1452; 7 James Wm. Moore, Moore's Federal Practice, § 34.13 (3d ed. 2017) (“The burden of establishing control over the documents sought is on the party seeking production.”); see also Montanez v. Gerber Childrenswear, LLC, 2011 WL 13128157, at *2 (C.D. Cal. June 6, 2011) (denying motion to compel where plaintiff failed to demonstrate that defendant had a legal right to obtain ingredient information from third party label manufacturers, even if defendant likely could obtain it informally); Maria Del Socorro Quintero Perez, CY v. United States, 2016 WL 705904, at *3 (S.D. Cal. Feb. 23, 2016) (“Plaintiffs have the burden of proving that Defendant Fisher has control of the requested documents under Federal Rule 34.”). Plaintiff has not shown that the LAPD has the legal right to obtain documents from either the Los Angeles City Attorney's Office or the Los Angeles County District Attorney's Office. Furthermore, because it is unclear which office Plaintiff is targeting in this request, the RFP is impermissibly vague and ambiguous. Finally, it would appear that many files held by either office would be presumptively protected from disclosure pursuant to the attorney-client privilege or the work product doctrine. Accordingly, Plaintiff's Motion to Compel production of documents in response to RFP No. 33 is DENIED.
*14 RFP No. 34: All notes, documents and interviews in the possession of internal affairs files regarding officer Moises Covarrubias, officer Jose Zavala, officer Enrique Meraz, Sgt. Christopher Burke and Sgt. Wences relating to dishonesty, racial profiling, misconduct and or discrimination. (Dkt. No. 48-15 at 27).
Response to RFP No. 34: Identical to the Response to RFP No. 6, with the addition of the following paragraph at the end of the Response:
Without waiving said objections, see attached privilege log for documents which will be produced pursuant to the protective order issued in this matter and upon receipt of payment for digital files. Discovery is ongoing. (Dkt. No. 48-15 at 27-28).
DECISION:
Plaintiff's Motion to Compel further responses to RFP No. 34 is GRANTED IN PART. For the reasons previously stated with respect to RFP 6, the Court finds that Plaintiff's request is proper as to officers Covarrubias, Zavala, Meraz and Sergeants Burke and Wences. Complaints against these officers for the past five years which relate to dishonesty, racial profiling, and/or discrimination which are in Defendant's possession, custody or control are ordered produced. However, the request for records of general “misconduct” is vague, ambiguous and overbroad and on those grounds is DENIED. Further, any documents produced by Defendant will be subject to the Protective Order in this case and shall not be disseminated by Plaintiff in any manner to any other individual or entity outside of this litigation. Defendants shall bear the costs of production. See United States ex rel Hooper v. Lockheed Martin Corp., 2009 WL 10655342, at *3 (C.D. Cal. Dec. 10, 2009) (“[T]he responding party generally bears the expense of complying with discovery requests.”) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978) (“[T]he presumption is that the responding party must bear the expense of complying with discovery requests[.]”) and OpenTV v. Liberate Techs., 219 F.R.D. 474, 476 (N.D. Cal. 2003)). Finally, if Defendants seek review of these documents in camera prior to production, the same procedures for in camera review set forth in the discussion of RFP No. 6 apply.
RFP No. 35: All complaints filed against above mentioned officer/Sgts. for dishonesty, discrimination or misconduct. (Dkt. No. 48-15 at 28).
Response to RFP No. 35: Identical to the Response to RFP No. 6.
DECISION:
Plaintiff's Motion to Compel further responses to RFP No. 35 is similarly GRANTED IN PART. Defendants are ORDERED to produce complaints against officers Covarrubias, Zavala, Meraz and Sergeants Burke and Wences for the five years prior to the incident relating to dishonesty and/or discrimination. However, the request for complaints of general “misconduct” is vague, ambiguous and overbroad and on those grounds is DENIED. Finally, if Defendants seek review of these documents in camera prior to production, the same procedures for in camera review set forth in the discussion of RFP No. 6 apply.
RFP No. 42: Records of all traffic stops, searches and dentations [sic] made by officers Zavala, Covarrubias and Meraz as gang officers. (Dkt. No. 48-15 at 32).
Response to RFP No. 42: Identical to the Response to RFP No. 13.
DECISION:
The Court finds that this request for “records” of traffic stops and searches by officers Covarrubias, Zavala and Meraz while working as gang officers is overbroad, as there is no time limit, and vague, as it is unclear whether Plaintiff seeks records relating to these three officers while working together or independently, or the type of “records” that Plaintiff envisions. Furthermore, the request appears to seek information that is not relevant to the claims and defenses in this action, as the “records” are not tied to the allegations contained in the complaint, i.e. traffic stops which involved African-Americans or were pretextual. Finally, the request appears to be unduly burdensome, as it is not clear how Defendants would conduct such a search in order to provide responsive documents. Accordingly, Plaintiff's Motion to Compel further responses to RFP No. 42 is DENIED.
*15 RFP No. 43: All records and reports in LAPDs possession related to Mr. Clark. (i) All bodycam video/audio and in car dash cam of officers Moises Covarrubias; Officer Jose Zavala; and Officer Enrique Meraz for the night of December 18, 2019 between the time of 8pm and 10pm. See Attachment for further production material [sic]. (Dkt. No. 48-15 at 32).
Response to RFP No. 43: Identical to the Response to RFP No. 13, with the addition of the following objections at the end of the Response:
This Request also seeks documents protected by the Official Information Privilege, the Government Privilege, the Officer's Right to Privacy, and third party privacy rights. This Requests [sic] seeks to violate Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 535; The Copley Press, Inc. v. The Superior Court of San Diego County (2006) 39 Cal. 4th 1272; California Constitution, Article I, Section I; California Penal Code §§ 832.5, 832.7, 832.2; and California Evidence Code §§ 915, 954, 1012, 1040, and 1043, et seq.
1. Incident Recall 1912180005910 (DEF 00001);
2. CAD Summary Report for 13G35 on 12/18/19 (DEF 00002-00003).
Without waiving said objections, see attached privilege log for documents which will be produced pursuant to the protective order issued in this matter and upon receipt of payment for digital files. (Dkt. No. 48-15 at 32-33).
DECISION:
Plaintiff's Motion to Compel further responses to RFP No. 43 is GRANTED IN PART and DENIED IN PART. In the event there is an incident or police report related to Plaintiff's detention and search of his person and vehicle on December 18, 2019, that has not been already been produced, the Court orders its production. However, the body-worn videos (BWV) of the officers involved in the incident appear to have been provided to Plaintiff, so his request as to the BWV is DENIED as MOOT.
B. Amended Motion for Sanctions
1. The Parties' Contentions
Plaintiff contends that sanctions are warranted under Federal Rule of Civil Procedure 30(d)(2) against the City of Los Angeles and Defendants' counsel, Mr. Rathbun, for “refusing to comply with discovery and deposition rules.” (AMS at 1). Specifically, Plaintiff argues that Defendants' counsel “intentionally and with malice decided to taint the deposition transcript ... in order to prejudice the jury against the plaintiff by suggesting that Mr. Clark was recording with a phone” during Plaintiff's depositions of Defendants on December 18, 2019. (Id. at 2). According to Plaintiff, LAPD officers in attendance at the depositions told counsel that Plaintiff was recording on his phone, which led to the following two exchanges once the parties were on the record:
Mr. Rathbun: Mr. Clark, just real quick, have you on a personal device, been recording anything, what's happened today?
Mr. Clark: No.
Mr. Rathbun: You do understand it's a crime to do that, right?
Mr. Clark: Correct.
Mr. Rathbun: Okay. So at no time have you recorded anything whether you've been in the room or outside the room; is that correct?
Mr. Clark: Correct.
Mr. Rathbun: Okay.
(AMS, Exh. A at 8-9) (consecutive pagination).
Mr. Rathbun: Mr. Clark, do you mind if I ask, I see there's a device on your bag. I just want to make sure that's not something that's recording.
Mr. Clark: No. It's my clock. It's my phone.
Mr. Rathbun: Okay. No. I see you have two phones. I want the record to be clear, I'm not accusatory. I just want to make sure it's not recording.
*16 Mr. Clark: No. It's my phone there.
Mr. Rathbun: Okay. Thank you.
(Id. at 10). While Plaintiff appears to imply that there was also something improper in Mr. Rathbun substituting for the then-attorney of record in defending the depositions, (id. at 4), and makes a conclusory accusation that the City of Los Angeles engaged in “delay and destruction when providing discovery,” (id. at 5), he clearly states that he seeks sanctions only “[f]or the inappropriate and unprofessional actions of attorney Edwin Rathbun during deposition.” (Id. at 6).
Defendants argue that Rule 30(d)(2) sanctions may be awarded only against a person, and as such, to the extent that Plaintiff is seek an award of sanctions against the City of Los Angeles, the request for sanctions “must be denied outright.” (Opp. AMS at 2). Defendants concede that sanctions may be appropriate where counsel asserts “[c]onstant frivolous objections and/or instructions to the deponent not to answer,” (id. at 2), but insists that such sanctionable conduct did not occur here. (Id. at 3). Defendants contend that counsel's questions to Plaintiff about his phone were brief and polite, and were not intended to impede, delay or frustrate the depositions. (Id.). As such, Defendants contend that the request for sanctions must be denied. (Id.).
2. Sanctions Are Not Warranted
Rule 30(d)(2) provides that “[t]he court may impose an appropriate sanction -- including the reasonable expenses and attorney's fees incurred by any party -- on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). Nothing even close to violating the Rule occurred in the portions of the deposition transcripts highlighted by Plaintiff. Mr. Rathbun's questions were brief, measured, and polite, and Mr. Rathbun quickly accepted Plaintiff's representations that he was not recording the proceedings on his phone(s). The questions did not materially impede, delay or frustrate the proceedings. Accordingly, Plaintiff's Amended Motion for Sanctions is DENIED.
V.
CONCLUSION
For the reasons stated above, Plaintiff's Amended Motion to Compel further discovery responses in GRANTED IN PART and DENIED IN PART. Defendants shall either serve supplemental responses and produce responsive documents where required by this Order or submit documents for in camera review and file a Notice of Manual Filing or Lodging within fourteen days of the date of this Order. Plaintiff's Amended Motion for Sanctions is DENIED. The Court sua sponte continues the deadline to file dispositive motions, including motions for summary judgment, from September 7, 2021 to November 8, 2021.
IT IS SO ORDERED.


Footnotes

With respect to any amended motion to compel, the Court's Order expressly admonished Plaintiff that: “[a]ny motion to compel further discovery must clearly identify, by the number of the request and its exact wording, both the specific request for production, interrogatory, or request for admission that Plaintiff contends requires a further response, and Defendants' written response or objection to the request, transcribed in full.” (Order at 4). With respect to any amended motion for sanctions, the Court advised: “[t]o the extent that Plaintiff is attempting to seek sanctions for purported abuses by Defendants or their counsel during his depositions of Defendants, Plaintiff must attach copies of the relevant portions of the deposition transcripts.” (Id. at 5).
Plaintiff did not assign exhibit numbers or letters to the 15 attachments to his Supplemental Brief. (See Dkt. Nos. 48-1 through 48-15). Accordingly, when citing to the exhibits, the Court will refer to the specific document number where the discovery was docketed.
The only allegations involving Sgt. Burke in the Complaint appear to be set forth in paragraphs 17 and 18, where Plaintiff names Sgt. Burke in the list of Defendants. Plaintiff alleges that Sgt. Burke “directly or indirectly participated in the authorization, planning and supervision of the actions of the individual LAPD officers involved in this case, including ... Defendants Zavala and Covarrubias.” (Complaint at 6 ¶ 18). Plaintiff also summarily alleges that Sgt. Burke “failed adequately to train LAPD personnel under his supervision and to promulgate appropriate policies to prevent race-based vehicular stops ....” (Id.).
For example, the Chatman court recognized that Martinez v. City of Stockton, 132 F.R.D. 677 (E.D. Cal. 1990), cited by Defendants in their objections, is not good law to the extent that it held that a federal court should apply state privilege law in a federal question case as a matter of course. Chatman, 2009 WL 173515, at *9 (observing that California law “ ‘does not inform federal privilege law’ ” and recognizing that Martinez has been overruled) (quoting Jackson v. Cnty. of Sacramento, 175 F.R.D. 653, 654 (E.D. Cal. 1997)). While the district court in Kelly, also cited by Defendants, concluded that a federal court should not “wholly ignore state laws ... when analyzing privilege issues in civil rights cases” in order to determine what state interests may be in play, the Kelly court also expressly recognized that “State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases” and that “ultimate responsibility for deciding how much weight to ascribe to such [state] interests, and how that weight compares with the significance of competing interests, must reside with the federal courts.” Kelly, 114 F.R.D. at 655-56. Accordingly, the mere existence of a state privilege does not bind a federal court.