THE ESTATE OF PAUL SILVA, by and through its successors-in-interest LESLIE ALLEN and MANUEL SILVA, et al. v. CITY OF SAN DIEGO, et al.
Case No. 3:18-cv-02282-L-MSB
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 21, 2021
ECF NO. 153
Honorable Michael S. Berg
Currently before the Court is the December 9, 2020 motion for a protective order to preclude the noticed deposition of Sherriff William D. Gore, filed by Defendants County of San Diego, William Gore, Alfred Joshua, M.D., Anthonny Adraneda, Barbara Lee, Laura Coyne, Michael Lawson, John Douthitt, Julio Rodriguez, Charles Delacruz, Diego Lopez, Aaron Vrabel, Jorge Enciso, Tanner Sherman, Christopher Simms, Ryan Seabron, Harvey Seeley, Cesar Ceballos and Jose Navarro (“County Defendants“). (ECF No. 153.) Also before the Court is Plaintiffs’ December 18, 2020 opposition to the motion (“Opposition“), (ECF No. 158), and County Defendants’ December 30, 2020 reply (Reply“), (ECF No 159). Having considered the briefings and all the supporting exhibits submitted by the parties, the Court GRANTS County Defendant‘s motion for the reasons
I. BACKGROUND
Plaintiffs in this case are Paul Silva‘s estate and parents, as successors-in-interest. (See ECF No. 79 at 12.) In claims relevant to this motion, Plaintiffs have named the County of San Diego as a defendant on claims of municipal liability and Sheriff William Gore (“Gore“) is named as a defendant in his individual capacity for his deliberate indifference in failing to properly train, supervise, discipline, and investigate his subordinates. (See ECF No. 79 at 56, 59, 62.)
On January 20, 2018, the decedent‘s mother called San Diego Police Department requesting assistance when her son was having a mental health emergency. (Id. at 6.) Despite her request for civil assistance and her description of her son‘s mental health history, San Diego Police Officers arrested Mr. Silva for being under the influence of methamphetamine and booked him into San Diego County Jail, where he was in San Diego Sheriff‘s Department (“Sheriff‘s Department“) custody. (Id.) After roughly 36 hours, during which he exhibited unusual behavior and did not receive any medical or mental health care, Sheriff‘s Department staff pepper sprayed Mr. Silva, then forcibly removed Mr. Silva from his cell. (Id. at 7-10.) During the cell extraction, Sheriff‘s deputies shot Mr. Silva with water balls, tased him, and held him down with a body shield until he became unconscious. (Id. at 10.) Mr. Silva “sustained serious and permanent brain damage, neurological injuries, kidney failure, a collapsed lung, and other life-threatening injuries,” and ultimately died after several weeks in a coma. (Id. at 11.)
II. DISCOVERY DISPUTE
County Defendants move for a protective order preventing the deposition of Gore, asserting that the “apex” doctrine prevents Plaintiffs from deposing Gore. (See ECF No. 153.) They argue Gore is a high-ranking official and Plaintiffs have not met their burden of establishing extraordinary circumstances as required by the doctrine to
III. LEGAL STANDARD
The Federal Rules of Civil Procedure (hereafter “Rules“) permit “discovery regarding any nonprivileged matter that is relevant to any party‘s claim or defense.”
A party seeking to prevent a deposition must generally meet a high burden. Hunt v. Cont‘l Cas. Co., No 13-cv-05966-HSG, 2015 WL 1518067, at *1 (N.D. Cal. Apr. 3, 2015) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)) (“Absent extraordinary circumstances, it is rare for a court to disallow the taking of a deposition.“). However, for depositions of high-ranking executives or officials – so called “apex” witnesses – the burden is placed on the party seeking the deposition to show extraordinary circumstances justify the deposition because such discovery creates “a tremendous potential for abuse or harassment” that may require the court‘s intervention for the witness‘s protection under
To invoke the protection of the apex doctrine, the party resisting discovery must first demonstrate he or she is a high-ranking official. Myles v. County of San Diego, No. 15cv1985-BEN (BLM), 2016 WL 4366543, at *3 (S.D. Cal. Aug. 15, 2016). Once the proposed deponent has done this, “the party seeking the deposition must ‘show: (1) the official‘s testimony is necessary to obtain relevant information that is not available from any other source; (2) the official has first-hand information that cannot reasonably be obtained from other sources; (3) the testimony is essential to the case at hand; (4) the deposition would not significantly interfere with the ability of the official to perform his government duties; and (5) the evidence sought is not available through less burdensome means or alternative sources.‘” Id. (quoting Thomas v. Cate, No. 1:05-cv-01198-LJO-JMD-HC, 2010 WL 1343789, at *1 (E.D. Cal. Apr. 5, 2010)); see also Coleman, 2008 WL 4300437 at *2 (“The extraordinary circumstances test may be met where high-ranking officials ‘have direct personal factual information pertaining to material issues in an action,’ and ‘the information to be gained is not available through any other sources[.]‘“) (quoting Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)).
IV. ANALYSIS
County Defendants assert that Gore “is indisputably a high-ranking official” and is entitled to protection from deposition under the apex doctrine. (ECF No. 153 at 3.) They further argue there are no extraordinary circumstances to justify Gore‘s deposition because Gore “has no unique, first-hand knowledge relating to this lawsuit or the incident involving Paul Silva.” (Id. at 4.) County Defendants finally argue that Plaintiffs have not met their burden of exhausting less restrictive resources, noting they never
On the other hand, Plaintiffs claim that to establish Gore‘s liability, they must show Gore “had notice of widespread and repeated incidences of death or serious injury caused by denial of medical care and/or excessive force” and that he “failed to take action to protect inmates under his care despite the dangers, created by the actions of his subordinates, of which he had been made aware.” (ECF No. 158 at 4.) Plaintiffs argue the only way to obtain such evidence is by deposing Gore because he is the only witness who can testify as to his knowledge and state of mind. (Id. at 4-5.)
A. Gore is a High-Ranking Official
As a threshold matter, County Defendants must establish that Gore is a high-ranking official to invoke the apex doctrine. According to County Defendants, Gore is a high-ranking official because of his role in overseeing one of the nation‘s largest law enforcement agencies, which employs more than 4,200 individuals, provides services that span air patrol to investigative operations, and operates detention facilities that house approximately 5,000 inmates at any given time. (See ECF No. 153 at 3-4.) Plaintiffs do not dispute this status. (See generally ECF No. 158.) In fact, Plaintiffs admit Gore holds “the highest position in the San Diego County Sheriff‘s Department.” (ECF No. 79 at 8.)
The law in this district and throughout the Ninth Circuit supports the conclusion that Gore is a high-ranking official. See Ramirez v. Zimmerman, No. 3:17-cv-1230, 2019 WL 2106594, at *6 (S.D. Cal. May 14, 2019) (“It is well established in this circuit and in this district that County Sheriffs, including Sheriff Gore specifically, are considered high-level officials to whom the apex doctrine applies.“); Estate of Levingston v. County of Kern, 320 F.R.D. 520, 526 (E.D. Cal. June 22, 2017) (“[C]ourts throughout the Ninth Circuit have determined that the position of sheriff is a high-ranking official to whom the apex doctrine may apply.“); Anderson v. County of Contra Costa, No. 15-cv-01673-RS (MEJ), 2017 WL 930315, at *4 (N.D. Cal. Mar. 9, 2017) (finding the sheriff was “an apex
Based on the foregoing, the Court finds Gore is sufficiently high-ranking to warrant application of the apex doctrine. See Myles, 2016 WL 4366543, at *4 (finding Gore a high-ranking government official in part because plaintiff acknowledged he is the “San Diego Sheriff‘s Department‘s chief policy maker and highest-ranking government officer“).
B. Plaintiffs Have Not Shown Extraordinary Circumstances
The disputed issue in this matter is therefore whether any “extraordinary circumstances” warrant an exception to the apex doctrine. See Coleman, 2008 WL 4300437, at *2. As an initial matter, Plaintiffs argue they should be permitted to depose Gore regarding two different categories of information—(1) Gore‘s “notice of widespread and repeated incidences of death or serious injury caused by denial of medical care and/or excessive force,” on a theory of deliberate indifference (ECF No. 158 at 8), and (2) Gore‘s knowledge and actions after being informed of the situation regarding Mr. Silva by Mr. Silva‘s father after Mr. Silva‘s hospitalization, on a theory of ratification and acquiescence. (Id. at 16.) However, because Plaintiffs’ operative complaint against Gore is based solely on a theory of deliberate indifference, the Court will not address Plaintiffs’ arguments concerning matters after January 21, 2018.1
1. Gore has relevant, personal knowledge
Plaintiffs have made a persuasive showing that Gore has personal knowledge of information relevant to this lawsuit, notwithstanding Gore‘s lack of direct involvement in Paul Silva‘s death. To begin with, Plaintiffs have successfully pled supervisory liability claims against Gore for his deliberate indifference in the training, supervision, discipline, and investigation of his subordinates. (See ECF No. 147 at 25-27; 28-29; 29-31 (Judge Lorenz’ order finding Plaintiffs sufficiently pled these causes of action against Gore).) The failure to train claim requires that Gore “disregarded the known or obvious consequence that a particular omission in [the Sheriff‘s Department‘s] training program would cause [department] employees to violate citizens’ constitutional rights.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014). Similarly, Plaintiffs’ cause of action for failure to supervise and discipline is based on the premise that Gore had “knowledge of the unconstitutional conditions in the jail, including his knowledge of the culpable actions of his subordinates,” and his inaction “amounted to acquiescence in the unconstitutional conduct of his subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011).
Specifically, Plaintiffs allege Gore knew that a significant number of detainee deaths were caused by inadequate medical care and that County jails frequently booked or housed mentally ill individuals, but that he and the other supervisory defendants failed to properly train deputies on various issues relevant to the constitutional rights of detainees with mental health disorders. (ECF No. 79 at 33-36, 64.) Plaintiffs also allege that Gore knew of prior incidents of misconduct and civil rights violations by his subordinates involving facts similar to those in this case, but that he acquiesced in or
Accordingly, Gore‘s lack of direct knowledge of the events that directly caused Paul Silva‘s death does not immunize him from deposition, because he has knowledge of other directly relevant facts, namely those that relate to his individual liability in this case based on his awareness and disregard of unconstitutional dangers to Paul Silva. Whether he claims or disclaims such awareness, Gore undoubtedly has personal knowledge of his own state of mind and actions, which are directly relevant to Plaintiffs’ case against him.
2. Plaintiffs have not exhausted less intrusive discovery methods
Notwithstanding Gore‘s personal knowledge of relevant issues, Plaintiffs have not demonstrated they exhausted “less intrusive discovery methods, such as [] interrogator[ies] or depositions of lower-level employees with more direct knowledge of the facts at issue.” Somers v. Digital Realty Tr. Inc., No. 14CV05180EMCKAW, 2016 WL 7157505, at *1 (N.D. Cal. Dec. 8, 2016).
Plaintiffs’ Opposition to County Defendants’ instant motion suggests that there might be other sources of information indicative of whether Gore had notice of relevant incidents and unconstitutional practices. Specifically, Plaintiffs reference an undated internal PowerPoint presentation that has been reported on in the newspaper, which “documented the following challenges: ‘a lack of funding for mental health professionals, lack of training and knowledge for staff and contractors, undetected and under-reported cases of troubled inmates and 9-to-5 clinical hours for mental health providers.‘” (ECF No. 158 at 10.) Additionally, Plaintiffs referenced a “2017 grand jury report that urged the Sheriff to appoint a full-time mental health director.” (Id.) It seems written discovery and depositions of other witnesses could both reveal those underlying documents, and whether and when they were provided to Gore. Additionally, other witnesses who met with Gore or implemented policies may be able to testify regarding whether responsive actions were taken.
Even though Plaintiffs plan to take depositions of other supervisory defendants and knowledgeable witnesses pursuant to
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Because Plaintiffs have not exhausted less intrusive means of discovery before seeking Gore‘s deposition, the Court GRANTS County Defendants’ motion for a protective order to preclude Plaintiffs from taking Sheriff Gore‘s deposition.
IT IS SO ORDERED.
Dated: January 21, 2021
Honorable Michael S. Berg
United States Magistrate Judge