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Kiessling v. Rader

United States District Court, D. Nevada

February 17, 2017

DET. RADER P#6099, et al., Defendants.

          ORDER (DOCKET NO. 26)

          NANCY J. KOPPE United States Magistrate Judge.

         Pending before the Court is Plaintiff's motion to compel discovery. Docket No. 26. Defendants filed a response in opposition, and Plaintiff filed a reply. Docket Nos. 30, 31. The Court finds the motion properly decided without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion to compel is hereby GRANTED in part and DEFERRED in part. With respect to the aspects of the motion to compel that are granted below, Defendants shall produce the subject documents by March 3, 2017.


         A. Standards

         When a party fails to provide requested discovery, the requesting party may move to compel that discovery. See Fed. R. Civ. P. 37(a). “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Parties are permitted to seek discovery of any nonprivileged matter that is relevant and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). The party seeking to avoid discovery bears the burden of explaining why discovery should be denied. See, e.g., Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (addressing burdens following 2015 amendments to the discovery rules).

         B. Internal Affairs Discovery

         Defendants resist the production of documents related to internal affairs findings on the ground that such documents are subject to the official information privilege. Docket No. 30 at 3-5; see also Docket No. 30-1 at 2 (asserting that LVMPD invokes this privilege “in regard to Internal Affairs (‘IA') documents Plaintiffs [sic] requested through discovery”).[1] Federal courts recognize a qualified privilege for official information, into which courts incorporate the confidentiality interests embodied in some state law privileges. Hooks v. Bannister, 2014 WL 6772989, at *6 (D. Nev. Dec. 2, 2014). Several courts have explained that, as a threshold matter, “the party asserting the privilege is required to submit a declaration or affidavit under oath and penalty of perjury from the head of the department that has control over the information.” Carrillo v. Las Vegas Metro. Police Dept., 2013 WL 592893, at *3 (D. Nev. Feb. 14, 2013) (collecting cases). Such an affidavit must include:

(1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality (if the agency has shared some or all of the material with other governmental agencies it must disclose their identity and describe the circumstances surrounding the disclosure, including steps taken to assure preservation of the confidentiality of the material), (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 interest, and (5) a projection of how much harm would be done to the threatened interests if the disclosure were made.


         Defendants' invocation of this privilege fails from the start. The affidavit submitted does not include even the most basic required information, such as a representation that the affiant is the head of the department with control over the information or that she has personally reviewed the material in question. See Docket No. 30-1. The affiant does not state conclusively whether the subject information has been shared with others, stating only that it had not been shared “to the best of [her] knowledge.” Id. Such a representation is especially weak given that it is not clear what role the affiant has in the department at issue or in relation to the custody of the information at issue, other than asserting she is a captain within the Internal Affairs Bureau. See Id. The affiant provides generalized assertions of harm, and fails to address in any way the impact on such asserted harm if the material is subject to a protective order. See id. As a result, the Court rejects Defendants' contention that the internal affairs documents are protected by the official information privilege.[2] The documents at issue shall be produced subject to protections afforded in the stipulated protective order.[3]

         B. Other Instances of Excessive Force

         Defendants next contend that discovery is irrelevant to the extent it seeks material regarding excessive force other than the specific instance of excessive force alleged in this case. Docket No. 30 at 5-6. Although the applicable rules were amended in some ways in 2015, relevancy remains a touchstone for determining the proper scope of discovery. See Fed. R. Civ. P. 26(b)(1); see also In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 563-64 (D. Ariz. 2016) (quoting Rule 26 Advisory Committee Notes (2015)). Moreover, despite the recent amendments to Rule 26, “discovery relevance remains a broad concept” that is to be construed liberally. Federal Nat'l Mortg. Assoc. v. SFR Investments Pool 1, LLC, 2016 WL 778368, at *2 n.16 (D. Nev. Feb. 25, 2016).

         Plaintiff indicates that the discovery at issue is relevant to his Monell claim against LVMPD for its employees acting pursuant to an expressly adopted official policy, longstanding practice or custom, or as a final policymaker. Docket No. 26 at 10. Defendants do not dispute directly that such discovery is relevant to a Monell claim. See Docket No. 30 at 6. Instead, Defendants argue that the discovery is not relevant because Plaintiff has not already disclosed “evidence tending to show that he has a Monell claim at all.” Id. This argument is not compelling. Although Defendants do not acknowledge it, this is the same argument that the Court rejected in Walker[4] when it explained that “[l]ack of evidence is not a valid basis to resist discovery.” 2015 WL 8328263, at *2. The Court further explained why that is so:

Discovery itself is the process which serves as the vehicle for Plaintiffs to obtain the very evidence Defendants contend is lacking. To permit a party to avoid discovery on this basis would lead to the tautology of denying a claim due to lack of evidence because discovery requests-the means of getting that evidence-were denied due to a lack of evidence. Further, to the extent Defendants attack the sufficiency of Plaintiffs' Monell claim, ...

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