The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 ESTATE OF GABRIEL STRICKLAND, No. 2:21-cv-00175 MCE AC
et al.,
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Plaintiffs,
13 ORDER
v.
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NEVADA COUNTY, et al.,
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Defendants.
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18 This matter is before the court on two discovery motions. Plaintiffs move (1) for a
19 protective order to safeguard the name of a third-party witness (ECF No. 41); and (2) to compel
20 initial disclosures from defendants despite the pendency of motions to dismiss (ECF No. 42).
21 These discovery motions were referred to the magistrate judge pursuant to E.D. Cal. R. 302(c)(1).
22 Both motions were briefed by joint statement and taken under submission. ECF No. 43. For the
23 reasons stated below, the court GRANTS the motion to compel and DENIES the motion for a
24 protective order.
25 I. Relevant Background
26 Plaintiffs are pursuing civil rights claims under 42 U.S.C. § 1938, the Rehabilitation Act,
27 the Americans with Disabilities Act, and the California Constitution, all arising from the death of
28 25 year-old Gabriel Strickland on January 1, 2020, at the hands of law enforcement officers
1 employed by the Nevada County Sherriff’s Office and the Grass Valley Police Department. ECF
2 No. 1 at 2. The case was filed on January 28, 2021. ECF No. 1. Currently pending before the
3 District Judge assigned to this case are motions to dismiss from Nevada County (ECF No. 14),
4 the City of Grass Valley (ECF No. 16), and defendants Shannan Moon, Taylor King, Brandon
5 Tripp, and Joseph McCormack (ECF No. 27).
6 II. Motion to Compel
7 Plaintiff asks the court to compel defendants to make initial disclosures despite the
8 pendency of the various motions to dismiss. ECF No. 42-1 at 1. Defendant Grass Valley argues
9 that its Rule 26(f) scheduling report contained objections to making initial disclosures until the
10 resolution of pending motions to dismiss, and they are waiting for the District Judge’s ruling on
11 those objections. Id. at 5. Defendants Nevada County and Wellpath Management Inc. argue that
12 “it is premature to exchange initial Rule 26 disclosures and commence with discovery until after
13 the multiple pending motions to dismiss are decided.” Id. at 7-8. Plaintiffs argue that prompt
14 discovery may reveal information relevant to the outcome of the pending motions to dismiss,
15 because the central issue in these motions is the reasonableness of the use of deadly force, and the
16 defenses asserted are fact based. Id. at 4.
17 A. Standard on Motion to Compel
18 The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure
19 26(b)(1). The current Rule states:
20 Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
21 matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of
22 the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources,
23 the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely
24 benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
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26 Fed. R. Civ. P. 26(b)(1). A party seeking to compel discovery has the initial burden to establish
27 that its request is proper under Rule 26(b)(1). If the request is proper, the party resisting
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1 discovery has the burden of showing why discovery was denied; they must clarify and support
2 their objections. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). General or
3 boilerplate objections, without explanation, are not prohibited but are insufficient as a sole basis
4 for an objection or privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist.
5 Court, 408 F.3d 1142, 1149 (9th Cir.2005).
6 B. Initial Disclosures Must be Made
7 Rule 26(a)(1)(C) states that Rule 26 disclosures should be made within 14 days after the
8 parties’ Rule 26(f) conference unless (1) “a different time is set by stipulation or court order” or
9 (2) “a party objects during the conference that initial disclosures are not appropriate in this
10 action.” If such an objection is made, the court must determine the timing and content of
11 disclosures. Id. Here, objections were made,1 but following a full review of the objections and
12 the procedural posture of this case, the undersigned finds no reason to delay discovery.
13 “The pendency of a motion to dismiss almost never serves to excuse compliance with
14 initial disclosure obligations.” Canter & Assocs., LLC v. Teachscape, Inc., No. C 07-3225 RS,
15 2008 U.S. Dist. LEXIS 108532, 2008 WL 191978, at *1 (N.D. Cal. Jan. 22, 2008). As Chief
16 Judge Kimberly J. Mueller has concisely stated, “[w]here the Ninth Circuit has spoken on the
17 issue, it has indicated that a district court may abuse its discretion if it stays discovery during the
18 pendency of a motion to dismiss if the discovery is relevant to the potentially dispositive motion.”
19 Espineli v. Toyota Motor Sales, U.S.A. Inc., No. 2:17-cv-00698-KJM-CKD, 2019 WL 3080808,
20 at *2 (E.D. Cal. July 15, 2019) (citing, inter alia, Alaska Cargo Transport, Inc. v. Alaska R.R.
21 Corp., 5 F.3d 378, 383 (9th Cir. 1993); Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987)).
22 Judge Mueller noted that the Ninth Circuit often employs a two-part test: delaying discovery may
23 be appropriate if: (1) the pending motion is potentially dispositive of the case, or at least would
24 render unnecessary the discovery at issue; and (2) the pending motion can be decided absent
25 additional discovery. Id. The first prong is not satisfied if disposition of the motion would likely
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1 Defendants contend that because the issue was raised in the 26(f) report, the issue is properly
27 before the District Judge and not the Magistrate Judge. ECF No. 42-1. At this juncture, because
the matter was raised in a motion to compel, it is automatically referred to the undersigned as a
28 discovery matter pursuant to E.D. Cal. Local Rule 302(c)(1).
1 involve leave to amend. See, e.g., Mlejnecky v. Olympus Imaging Am., Inc., No. 2:10-CV-
2 02630, 2011 WL 489743, at *9 (E.D. Cal. Feb. 7, 2011) (finding a pending motion to dismiss not
3 dispositive of the case where the Magistrate Judge anticipated that, even if the motion were
4 granted, the District Judge would grant leave to amend.)
5 Here, the undersigned anticipates that if the motion is granted plaintiffs will have an
6 opportunity to amend. Nevada County’s motion, for example, seeks to dismiss several causes of
7 action because plaintiffs make “conclusory allegations” that “lack factual content” and are
8 therefore insufficient to state a claim. ECF No. 14 at 6-11. Defendant Grass Valley’s motion to
9 dismiss makes factual arguments regarding the constitutionality of officers’ use of force based on
10 allegations in plaintiffs’ complaint that Mr. Strickland “pointed a black toy airsoft rifle with an
11 orange tip on the barrel … in the direction of Defendants Brandon Tripp, Brian Hooper, and
12 Conrad Ball.” ECF No. 16-1 at 4-9. Either of these motions, if granted, would likely be granted
13 with leave to amend. This favors proceeding with discovery.
14 Further, in their Rule 26(f) report, plaintiffs identify specific areas of discovery they
15 assert are necessary to their defense against the pending motions to dismiss, including: “(a) the
16 use of force by the officers in the field, (b) the actions of the respective supervisors before and
17 during the incident, (c) the training of the field officers in the use of force with attention to de-
18 escalation and negotiation techniques and dealing with mentally disabled persons; (d) the
19 condition of the Airsoft rifle during the incident; (e) communications between the field offices
20 and their respective headquarters and supervisors, and (f) the communications between the NCSO
21 at the Wayne Brown Correctional Facility and the Nevada County Probation Department and the
22 district attorney’s office about the mental health of Gabriel Strickland while he was in custody
23 between December 26-29, 2019.” ECF No. 35 at 6. The court is persuaded that initial
24 disclosures and early discovery are relevant to potential amendment, and also could potentially
25 lead to judicially noticeable documents, admissible on a motion to dismiss, that could be relevant
26 to plaintiffs’ defense of the pending motions. Under such circumstances the Federal Rules and
27 the case law support requiring Rule 26 disclosures at this stage, rather than after pending motions
28 to dismiss are decided.
1 For these reasons, the motion to compel is GRANTED and the parties are ordered to
2 exchange Rule 26 initial disclosures within fourteen days.
3 III. Motion for Protective Order
4 Plaintiffs ask for a protective order in which a third-party witness’s “name, contact
5 information, and the detailed subject matter he/she will testify about will be made available only
6 to ‘Counsel of Record’ as defined in the [approved general] Protective Order.” ECF No. 41-1 at
7 2. Upon court approval, plaintiffs intend prepare a FRCP 45 deposition subpoena for the witness
8 and disclose the witness’s name, contact information, and more detail on the subject matter of the
9 testimony to opposing counsel. Id. Plaintiffs assert that the third-party witness in question has
10 important testimony to give but is “in reasonable fear of intimidation or physical harm” – but
11 once “his testimony is made under oath, the protective order can be vacated.” Id. at 4.
12 Defendants oppose the motion, arguing plaintiff’s allegations that the third-party witness
13 fears intimidation and physical harm are conclusory and unsupported. Id. at 6. Defendants also
14 argue that the proposed protective order is unreasonably one-sided and prejudicial. For example,
15 defendant Nevada County argues it will prejudice its ability to “adequately prepare for the
16 deposition without the ability to identify the witness to the Nevada County Defendants and confer
17 with them prior to the proceeding.” Id.
18 A. Standard on Motion for Protective Order
19 Under the Federal Rules of Civil Procedure, the method available to limit the breadth or
20 use of a discovery request is a motion for a protective order under Fed. R. Civ. P. 26(c). This rule
21 states in relevant part:
22 A party or any person from whom discovery is sought may move for
a protective order in the court where the action is pending[.] The
23 motion must include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an
24 effort to resolve the dispute without court action. The court may, for
good cause, issue an order to protect a party or person from
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annoyance, embarrassment, oppression, or undue burden or
26 expense[.]
27 Fed. R. Civ. P. 26(c). Options available to the court include, in part, “forbidding the disclosure or
28 discovery; [ ] forbidding inquiry into certain matters, or limiting the scope of disclosure or
1 discovery to certain matters.” Id. District courts have broad discretion to determine whether a
2 protective order is appropriate and, if so, what degree of protection is warranted. Seattle Times
3 Co. v. Rhinehart, 467 U.S. 20, 36 (1984); see also Phillips ex rel. Estates of Byrd v. Gen. Motors
4 Corp., 307 F.3d 1206, 1211–12 (9th Cir. 2002). The party seeking to limit discovery has the
5 burden of proving “good cause,” which requires a showing “that specific prejudice or harm will
6 result” if the protective order is not granted. In re Roman Catholic Archbishop of Portland,
7 661 F.3d 417, 424 (9th Cir. 2011) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
8 1130 (9th Cir. 2003)).
9 B. Plaintiffs Have Not Shown Good Cause
10 Plaintiffs’ motion for a protective order does not establish good cause, especially
11 considering the potential prejudice to the defendants. Federal Rule 26(a)(1)(A)(i) states that
12 except as otherwise “[o]rdered by the court, a party must, without awaiting a discovery request,
13 provide to the other parties: (i) the name, and if known, the address and telephone number of each
14 individual likely to have discoverable information- along with the subjects of that information -
15 that the disclosing party may use to support its claims or defenses, unless the use would be solely
16 for impeachment[.]” In order to obtain a protective order permitting them to deviate from this
17 rule, plaintiffs must show “good cause,” including a specific showing of harm. “Broad
18 allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy
19 the Rule 26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992),
20 quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir.1986).
21 Here, plaintiffs broadly allege that the third-party witness in question is “in reasonable
22 fear of intimidation or physical harm.” ECF No. 41-1. This is not sufficiently specific to
23 constitute good cause. It is also unclear why the witness’s fear of intimidation or physical harm
24 would disappear only after his or her deposition is taken. Plaintiffs’ proposed “attorneys’ eyes
25 only” approach would impede defendants’ preparation for depositions and is not supported by
26 good cause. For these reasons, the plaintiffs’ motion for a protective order is DENIED.
27 ////
28 ////
1 IV. Conclusion
2 Plaintiffs’ motion to compel discovery (ECF No. 42) is GRANTED and the parties are
3 || ordered to exchange Rule 26 initial disclosures within fourteen days. Plaintiff's motion for a
4 || protective order (ECF No. 41) is DENIED.
5 || ITIS SO ORDERED.
6 || DATED: May 19, 2021.
7 . ~
8 Htttenr— Lhor—e_
ALLISON CLAIRE
9 UNITED STATES MAGISTRATE JUDGE
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