Case Information
*1 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2098 Page 1
of 29 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA LANCE BLACK, Case No.: 21-cv-01990-RBM-JLB Plaintiff, ORDER GRANTING IN PART v. PLAINTIFF LANCE BLACK’S MOTION TO COMPEL
CITY OF SAN DIEGO, et al., SUPPLEMENTAL RESPONSES TO Defendants. DISCOVERY [ECF No. 109]
Before the Court is a motion to compel filed by Plaintiff Lance Black (“Plaintiff”). (ECF No. 109.) Plaintiff moves the court to compel the City of San Diego (the “City”) and Officers Ryan Poole, Elizabeth Ortiz, Christina Berg, Amy Buell, Jardin Killinger, Austin Fowler, Kyle Valente, Jonathan Wells, Katherine Jennings, Diego Usma, Jose Rodriguez, and David Burns (collectively, “Police Officer Defendants”) (collectively, “Defendants”) to provide or to supplement their responses to Requests for Production (“RFP”) Nos. 18, 19, 22, 26, 33–37, 71–73, and 75–76, propounded to the City; Interrogatory No. 3 propounded to the City; and Requests for Admission (“RFA”) Nos. 13 and 14 propounded to all Police Officer Defendants. ( Id . at 2.) Defendants filed an opposition (ECF No. 118), and Plaintiff filed a reply (ECF No. 122). For the reasons stated below, Plaintiff’s motion to compel is GRANTED IN PART . [1] *2 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2099 Page 2 of 29 1 I. BACKGROUND A. Factual Background On November 27, 2021, Plaintiff commenced this civil rights action against the City
of San Diego, the San Diego Police Department, San Diego County, the San Diego Sherriff’s Department, and the Police Officer Defendants. (ECF No. 1.) On March 5, 2024, Plaintiff filed the Third Amended Complaint, the operative complaint, against the City of San Diego and the Police Officer Defendants. (ECF No. 76 (“TAC”).) The following allegations are taken from the Third Amended Complaint:
Plaintiff alleges that two police officers stopped him because he is a black man who was driving an expensive car and wearing a nice watch. (TAC ¶¶ 4, 10–13.) Plaintiff alleges the officers then retaliated against him because he demanded to know why he had been stopped. (TAC ¶¶ 14–18.) Many additional officers were called to the scene, who taunted Plaintiff, surrounded his car, forcefully removed Plaintiff from the car, violently threw him to the ground, searched the car, and deleted the cell phone video he took of his interaction with officers. (TAC ¶¶ 21–23, 26–32, 34–36.)
Plaintiff asserts that when Sergeant Berg arrived, she and numerous other officers concocted false charges against Plaintiff to cover up their racially motivated misconduct, including an officer being directed by another officer to shut off their body camera to avoid the officers’ meeting being recorded. (TAC ¶¶ 38–40, 49–52.) Plaintiff alleges that officers continued to act with racial animus in commenting on his “attitude,” saying he was “lippy,” tightening his handcuffs when he complained about his treatment, and falsely stating the handcuffs were stuck and would have to be cut off. (TAC ¶¶ 41–45, 49–50, 60.) Plaintiff was then detained in a police car for three hours while two officers wrote and rewrote their false reports to support charges against Plaintiff and ensure he was not released after booking. (TAC ¶¶ 46–47, 53–55, 59, 62.) Plaintiff was not prosecuted.
(TAC ¶¶ 63, 67.)
/// [2] *3 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2100 Page 3 of 29 1 Based on the foregoing, Plaintiff brings the following causes of action: assault, battery, false imprisonment, intentional infliction of emotional distress, trespass to chattels, invasion of privacy, computer fraud and abuse, negligence, violation of Cal. Civil Code § 52.1(a), violation of Cal. Civil Code § 51.7, and violations of 42 U.S.C. § 1983, including false arrest, equal protection and due process violations, excessive force, unreasonable search, retaliation, and Monell claims based on official policy and custom and failure to train. (TAC at 46–95.)
B. Background of the Instant Discovery Disputes On September 20, 2024, the parties raised two discovery disputes pursuant to Section
V.B. of Judge Burkhardt’s Civil Chambers Rules. (ECF No. 102.) The Court held an informal Discovery Conference on October 2, 2024, and issued a follow-up minute order summarizing the discussion. (ECF Nos. 103, 104.) At the Discovery Conference, the Court expressed concern about the overbreadth and other deficiencies of certain discovery requests and offered an additional opportunity for the parties to further meet and confer about, inter alia , possible modifications to those requests still in dispute. The Court held a follow-up Status Conference on November 22, 2024. (ECF Nos. 104, 106, 107.) The Court thereafter set a briefing schedule for motions seeking to resolve the remaining disputes. (ECF No. 108.)
Plaintiff timely filed the instant motion to compel on December 11, 2024. (ECF No. 109.) Defendants timely filed an opposition on January 3, 2025. (ECF No. 118.) On January 10, 2025, Plaintiff timely filed a reply. (ECF No. 122.)
II. LEGAL STANDARD
The Federal Rules of Civil Procedure authorize parties to obtain discovery regarding any nonprivileged matter that is relevant to any claim or defense and proportional to the needs of the case, “considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. [3] *4 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2101 Page 4 of 29 1 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Rule 26(b) requires a district court to “limit the frequency or extent of discovery” if it determines that “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). “Courts must consider both relevance and proportionality in determining whether the scope of discovery that a party seeks is appropriate.” BlackBerry Ltd. v. Facebook, Inc ., Case No. CV 18-1844-GW (KSx) 2019 WL 4544425, at *6 (C.D. Cal. Aug. 19, 2019). “District courts have broad discretion in determining relevancy for discovery purposes.” Surfvivor Media, Inc. v. Survivor Prods. , 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002)).
On a motion to compel, the moving party bears the burden of demonstrating relevance, proportionality and other Rule 26 requirements. Shared P’ship v. Meta Platforms, Inc ., Case No. 22-cv-02366-RS (RMI), 2023 WL 2526645, at *3 (N.D. Cal. Mar. 14, 2023) (citation omitted). The party resisting discovery “has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Weinstein v. Katapult Grp ., Inc., No. 21-CV-05175-PJH, 2022 WL 4548798, at *1 (N.D. Cal. Sept. 29, 2022) (internal quotation marks omitted); Doutherd v. Montesdeoca , No. 2:17-cv-2225-MCE-EFB, 2018 WL 3008867, at *2 (E.D. Cal. June 15, 2018).
Federal courts recognize a constitutionally based right of privacy that may be asserted in response to discovery requests. See Soto v. City of Concord , 162 F.R.D. 603, 616 (N.D. Cal. July 17, 1995); Medina v. Cnty. of San Diego , No. 08CV1252 BAS RBB, 2014 WL 4793026, at *3–4 (S.D. Cal. Sept. 25, 2014). In resolving privacy objections, courts balance the need for the requested information against the asserted privacy right. See Soto , 162 F.R.D. at 616 . “In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential.” Id. ; see also Kelly v. City of San [4] *5 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2102 Page 5 of 29 1 Jose , 114 F.R.D. 653, 660 (N.D. Cal. Feb. 26, 1987). “However, these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments.” Soto , 162 F.R.D. at 616. “Current case law suggests the privacy interests police officers have in their personnel files do not outweigh plaintiff's interests in civil rights cases.” Dowell v. Griffin , 275 F.R.D. 613, 617 (S.D. Cal. Aug. 17, 2011) (citing Soto , 162 F.R.D. at 617; Hampton v. City of San Diego , 147 F.R.D. 227, 230 (S.D. Cal. 1993); Miller v. Pancucci , 141 F.R.D. 292 (C.D. Cal. 1992)). Further, privacy rights can be adequately protected by a “tightly drawn” protective order. See Kelly , 114 F.R.D. at 662, 666, 671; Hampton , 147 F.R.D. at 231.
“Federal common law recognizes a qualified privilege for official information.” Sanchez v. City of Santa Ana , 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr v. United States Dist. Ct. for N.D. Cal. , 511 F.2d 192, 198 (9th Cir. 1975), aff'd , 426 U.S. 394 (1976)). To determine whether information in government personnel files is subject to the official information privilege, federal courts weigh the potential benefits of disclosure against the potential disadvantages. Id. at 1033–34.
The deliberative process privilege protects “documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated. It was developed to promote frank and independent discussion among those responsible for making governmental decisions, and also to protect against premature disclosure of proposed agency policies or decisions.” F.T.C. v. Warner Commc'ns Inc. , 742 F.2d 1156, 1161 (9th Cir. 1984) (internal citations omitted); see also Lahr v. Nat'l Transp. Safety Bd. , 569 F.3d 964, 979 (9th Cir. 2009) (the purpose of the deliberative process privilege is to allow agencies to freely “explore possibilities, engage in internal debates, or play devil's advocate without fear of public scrutiny.”). In order to assert the privilege, an agency must show that the information sought is both (1) pre-decisional, and (2) deliberative. Carter v. U.S. Dep't of Commerce , 307 F.3d 1084, 1089 (9th Cir. 2002). The deliberative process privilege is not absolute, and even if the privilege applies, “[a] litigant may obtain deliberative materials if his or her [5] *6 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2103 Page 6 of 29 *7 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2104 Page 7 of 29 *8 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2105 Page 8 of 29 *9 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2106 Page 9 of 29 *23 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2120 Page 23 of 29 1 a court engages in this balancing of interests, the party asserting the privilege must first make a “substantial threshold showing.” Id . (quoting Kelly , 114 F.R.D. at 669). Specifically, the party asserting the privilege must provide a declaration or affidavit including:
“(1) an affirmation that the agency generated or collected the material in issue and has in fact 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, (5) and a projection of how much harm would be done to the threatened interests if the disclosure were made.”
Id . (quoting Kelly, 114 F.R.D. at 670). In its opposition, the City argues that it has met the requisite threshold showing through the declarations of Captain Anthony Dupree, Captain Jeffrey, and Sylvia Satrom, which were attached to its discovery responses. (ECF No. 118 at 7 (citing ECF No. 109, Exs. B, C, D).) Ms. Satrom, the Deputy Director of Police Human Resources, addresses the personnel files responsive to RFP No. 33, (ECF No. 109 at 42–45), Captain Peterson, the Captain overseeing the Internal Affairs Unit, addresses the Internal Affairs records responsive to RFP Nos. 35 and 36, ( Id . at 47–54), and Captain Dupree, the Captain overseeing the Backgrounds and Recruiting Unit, addresses officer job applications and background investigation records responsive to RFP Nos. 71–73 ( Id . at 57–59). In his reply, Plaintiff argues that the declarations do not include required information such as (1) an affirmation that the “SDPD ‘generated or collected’ the material requested”; (2) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm and instead “describe[s] why the existing protective order may be inadequate”; and (3) a projection of how much harm would be done to the threatened interests if disclosure were made. (ECF No. 122 at 3.) /// [23] *24 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2121 Page 24 of 29 1 In her declaration, Ms. Satrom states: I personally reviewed the protective order entered in this case. Disclosure of the records identified above pursuant to the protective order would still create a substantial risk of harm to the significant governmental and privacy interests identified above. First, members of the public may be less forthcoming and willing to provide information to investigating officers conducting background checks if they know they may be contacted by attorneys and investigators for any Plaintiff involved in a lawsuit. In addition, disclosure pursuant to a protective order is the first step toward public disclosure. I have been informed that Plaintiff Lance Black and his counsel have been in contact with media outlets related to this case and have regularly expressed an intent to dissolve the protective order or ask the Court to order documents subject to the protective order released from the order.
(ECF No. 109 at 45.) Captain Peterson similarly states in his declaration:
I personally reviewed the protective order entered in this case. Disclosure of the records identified above pursuant to the protective order would still create a substantial risk of harm to the significant governmental and privacy interests identified above. First, police officers and members of the public may be less forthcoming and willing to report misconduct if they know they may be contacted by attorneys and investigators for any Plaintiff involved in a lawsuit. In addition, disclosure pursuant to a protective order is the first step toward public disclosure. I have been informed that Plaintiff Lance Black and his counsel have been in contact with media outlets related to this case and have regularly expressed an intent to dissolve the protective order or ask the Court to order documents subject to the protective order released from the order.
( Id . at 53.) Captain Dupree further similarly asserts in his declaration:
I personally reviewed the protective order entered in this case. Disclosure of the records identified above pursuant to the protective order would still create a substantial risk of harm to the significant governmental and privacy interests identified above. First, members of the public may be less forthcoming and willing to provide information to investigating officers conducting background checks if they know they may be contacted by attorneys and investigators for any Plaintiff involved in a lawsuit. In addition, disclosure pursuant to a protective order is the first step toward public [24] *25 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2122 Page 25 of 29 1 disclosure. I have been informed that Plaintiff Lance Black and his counsel have been in contact with media outlets related to this case and have regularly expressed an intent to dissolve the protective order or ask the Court to order documents subject to the protective order released from the order.
( Id . at 59.) The Court finds that the declarations do not meet the fourth threshold factor set forth in Kelly , which requires a party asserting the privilege to describe how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests . 114 F.R.D. at 613. Courts have found that declarations that lack case-specific information and amount to only general assertions do not meet the fourth factor under Kelly . See Soto , 162 F.R.D. at 621; Miller , 141 F.R.D. at 300–01; Kelly , 114 F.R.D. at 672; see also Villa v. Cnty. of San Diego , No. 20cv537-CAB (NLS), 2021 WL 242981, at *3 (S.D. Cal. Jan. 25, 2021) (“The identified interests and harms are ones that apply to disclosure of any Internal Affairs or personnel files. There is nothing specific as to the information in any of [the officer’s] specific files.”). The declarations assert that members of the public and police officers may be less forthcoming but do not explain why those privacy concerns cannot be addressed with a protective order. The use of a carefully drafted protective order is a tool often employed by courts in these types of cases and would substantially reduce Defendants’ confidentiality concerns. See Soto, 162 F.R.D. at 614 .
The declarations also state that Ms. Satrom, Captain Dupree, and Captain Peterson, “have been informed that Plaintiff Lance Black and his counsel have been in contact with media outlets related to this case and have regularly expressed an intent to dissolve the protective order or ask the Court to order documents subject to the protective order released from the order.” (ECF No. 109 at 45, 53, 59.) Again, this is a concern that the Court finds can be adequately addressed by redaction of personal information and a robust protective order.
The current Protective Order in this case does not provide for designating documents “For Counsel Only.” In consideration of the privilege and privacy issues identified by [25] *26 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2123 Page 26 of 29 1 Defendants and supported by declarations, the Court modifies the Protective Order in the 2 case to provide for a “Confidential – For Counsel Only” designation. A modified 3 Protective Order will be docketed along with this Order. 4 Even had the City met its burden as to official information privilege, the Court would 5 still find, balancing the interests at issue, that the documents should be produced as set 6 forth in the chart above. Accordingly, the Court OVERRULES Defendants’ objections 7 based on official information privilege as to RFP Nos. 33, 35, and 36. 8 B. Interrogatory No. 3 to the City 9 Next, Plaintiff seeks an order compelling the City to respond to interrogatory No. 3.
10 (ECF No. 109 at 2.) Interrogatory No. 3 states: 11
List all arrests made by Defendant Jardin Killinger from 2016-202[1] [8] by name of person arrested, race of person arrested, jurisdiction, date, offense, CAD Event No., and Case No.
( Id. at 82.) The City responded as follows: Objection. This interrogatory is vague and ambiguous as to the timeframe “2016-202”, as it requires responding party to speculate regarding what the end date of the requested time frame is. This interrogatory is impermissibly overbroad, oppressive, and unduly burdensome. In addition, this interrogatory calls for information that is irrelevant to the subject matter of this action and is not proportional to the needs of the case. This interrogatory invades the personal and fundamental right of privacy of individuals not parties or witnesses to the present lawsuit in contravention of the Federal right to privacy (5 U.S.C. § 552), the United States Constitution, and Section 1 of Article I of the California Constitution. C.C. § 1798.1.
( Id. ) Plaintiff argues that this interrogatory is relevant to his Monell claims and Defendant Killinger in particular, citing paragraph 153 of the TAC. ( Id. at 3.) As previously stated, *27 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2124 Page 27 of 29 1 paragraph 153 relates to a dismissed Monell claim. Moreover, Defendant Killinger is not the arresting officer in this case. ( See ECF No. 118 at 7.) The Court sustains the City’s objection. Plaintiff has not established the relevance of the interrogatory. Moreover, the interrogatory is overbroad and not proportional to the needs of this case. A narrower version of this request might be appropriate, but that request is not before the Court. The Court need not reach the issue of privacy. Accordingly, Plaintiff’s motion to compel the City to respond to interrogatory No. 3 is DENIED .
C. Request for Admission Nos. 13 and 14 to the Police Officer Defendants Plaintiff further seeks an order compelling the Police Officer Defendants to respond
to RFA Nos. 13 and 14. (ECF No. 109 at 2.) RFA Nos. 13 and 14 state: No. 13: Admit that you have never been investigated by internal affairs or their chain of command for any use of force incident. No. 14: Admit that you have never received any formal or informal discipline, reprimand, suspension, or additional training for any use of force incident.
( See id. at 85–143.) The Police Officer Defendants did not answer the RFAs and asserted the following objection:
Objection. This request is vague and ambiguous as to the terms “you” and “force” and the phrase “for any use of force incident” which are not defined. This request calls for information protected under California Penal Code § 832.7(a). Litigants may not obtain information that is in a police officer’s personnel records except through the method provided for in Evidence Code § 1043. This request seeks information protected by the Executive and Official Information Privileges. This request is impermissibly overbroad, oppressive, and unduly burdensome. This request calls for information that is irrelevant to the subject matter of this action and is not proportional to the needs of this case. This request seeks private personnel information.
( See id. ) Plaintiff argues that these RFAs are relevant to his Monell claims against the City. ( Id. at 4.) He further argues that “[t]here are no standards imposed and enforced by the City . . . as to abuses of use of force.” ( Id. ) In response, Defendants argue that these RFAs [27] *28 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2125 Page 28 of 29 1 are not limited by time or by the definition of “force.” (ECF No. 118 at 4.) Defendants further argue the RFAs seek information protected by the official information privilege and contain private information. ( Id. ) The City also notes that it produced personnel files, including discipline records, of multiple officers. ( Id. )
The Court finds that RFA Nos. 13 and 14 seek relevant information and are proportional to the needs of the case. The RFAs are not overly broad because the requests are limited to the official actions of Internal Affairs or the City. The official information privilege objection is overruled for the reasons set forth above in addressing RFP Nos. 33, 35, and 36. In addition, “The contention that the doctrine of governmental privilege precludes disclosure of personnel records, whether or not established in California state courts, is not the law of this circuit.” Green v. Baca , 226 F.R.D. 624, 643–644 (C.D. Cal. 2005) (citation omitted); see also Breed v. United States District Court , 542 F.2d 1114, 1115 (9th Cir. 1976) (“The scope of an evidentiary privilege in a 42 U.S.C. § 1983 civil rights action is a question of federal law. [Citation.] State law may provide a useful referent, but it is not controlling.”) The Court finds that there are no overriding privacy concerns implicated in admitting or denying whether the Police Officer Defendants have been investigated by internal affairs or their chain of command for any use of force incidence, or whether the Police Officer Defendants have received any formal or informal discipline, reprimand, suspension, or additional training for any use of force incident. Accordingly, Plaintiff’s motion to compel the Police Officer Defendants to amend their responses to RFA Nos. 13 and 14 is GRANTED. /// /// /// /// /// /// /// [28] *29 Case 3:21-cv-01990-RBM-JLB Document 155 Filed 03/28/25 PageID.2126 Page 29 of 29 1 IV. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s motion to compel. Defendants shall provide supplemental responses, as set forth above, within fourteen days of the date of this Order.
IT IS SO ORDERED.
Dated: March 28, 2025
NOTES
[8] Plaintiff clarified for the City during the informal discovery conference that 28 this interrogatory should be interpreted as stating, “from 2016–2021.” (ECF No. 109 at 5.)
[26]