The opinion
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7 UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
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10 PHILIP DEBEAUBIEN, No. 2:19-cv-1329 WBS DB
11 Plaintiff,
12 v. ORDER
13 STATE OF CALIFORNIA, CALIFORNIA
HIGHWAY PATROL, CHP
14 LIEUTENANT TODD BROWN, CHP
SERGEANT REGGIE WHITEHEAD,
15 CHP CHIEF BRENT NEWMAN,
16 Defendants.
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18 On May 14, 2021, this matter came before the undersigned pursuant to Local Rule
19 302(c)(1) for hearing of plaintiff’s amended motion to compel. (ECF No. 66.) Attorney Stewart
20 Katz appeared via Zoom on behalf of the plaintiff. Attorney Amie McTavish appeared via Zoom
21 on behalf of defendants State of California, California Highway Patrol, Todd Brown, Reggie
22 Whitehead, Brent Newman, Ryan Stonebraker, and Jeremy Dobler. Oral argument was heard and
23 plaintiff’s motion was taken under submission.
24 The amended complaint alleges generally that on August 2, 2018, California Highway
25 Patrol (“CHP”) Officer Brad Wheat stated to another CHP officer that on the previous night
26 Wheat had driven to a location intending to kill Mary Wheat, Brad Wheat’s estranged wife, and
27 plaintiff Philip Debeaubien, who was romantically involved with Mary Wheat. On September 3,
28 ////
1 2018, Officer Brad Wheat, while off duty, shot plaintiff and then murdered Mary Wheat, before
2 turning the gun on himself and committing suicide. (ECF No. 30.)
3 As a predicate matter, the undersigned notes:
4 Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
5 needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties’ relative access
6 to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
7 of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
8 be discoverable.
9 Fed. R. Civ. P. 26(b)(1). “Relevancy, for the purposes of discovery, is defined broadly, although
10 it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674,
11 679-80 (N.D. Cal. 2006). “The party resisting discovery ‘has the burden to show that discovery
12 should not be allowed, and the burden of clarifying, explaining, and supporting its objections.’”
13 Laub v. Horbaczewski, 331 F.R.D. 516, 521 (C.D. Cal. 2019) (quoting Oakes v. Halvorsen
14 Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998)).
15 Plaintiff’s motion to compel concerns two requests for production. Plaintiff’s Request for
16 Production No. 59 seeks:
17 All CHP documents created prior to September 3, 2018,
documenting the information that Officer Dave Ward provided on
18 August 3, 2018, to a CHP supervisor regarding Brad Wheat having
stated that he drove to a location to shoot someone and then kill
19 himself.
20 Defendant CHP responded “Objection. This request calls for documents previously produced.
21 See Deposition of Todd Brown, Ex. 9-11.”1 (JS (ECF No. 76) at 2; ECF No. 76-3 at 3.)
22 In the absence of any further explanation, defendant’s citation to the deposition of Todd
23 Brown is puzzling, as Brown was testifying in his individual capacity as a defendant. (JS (ECF
24 No. 76) 9.) Brown seemingly was in no position to opine as to potentially responsive documents.
25 Moreover, that the request “calls for documents previously produced” is vague. In this regard,
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27 1 At the May 14, 2021 hearing, defense counsel asserted that the Joint Statement misrepresented
defendant’s response by failing to state that defendant cited to exhibits. The Joint Statement,
28 however, accurately reproduced defendant’s response, including the citation to Ex. 9-11.
1 that the request implicated documents previously produced does not address whether other
2 responsive documents exist. Nor does the response provide any assurance that defendants even
3 searched for responsive documents.
4 In the Joint Statement, defendants argue that this is in fact that case, asserting that “[t]he
5 single responsive document to request 59 . . . was produced twice”—at the Brown deposition and
6 in response to another request for production. (JS (ECF No. 76) at 5.) If that is true, that should
7 have been stated unequivocally in defendant’s response to plaintiff’s request. But even the
8 reliability of this assurance is undercut by defendant’s argument that “[a]ll other communications
9 regarding the August 3rd incident were created after the September 3rd shooting[.]” (Id. at 5)
10 (emphasis added). Plaintiff’s request is not seeking communications, but instead documents.
11 And at the May 14, 2021 hearing, plaintiff’s counsel articulated reason to believe that other
12 documents may exist.
13 The second item at issue is plaintiff’s Request for Production No 62, which states:
14 Provide all documents communicated to or from the Risk
Management Administrator responsible for undertaking the duties
15 set forth in CHP HPM 100.86 in connection with the September 3,
2018 shooting by Brad Wheat. (See CHP HPM 100.86, CHP1640-
16 49.)
17 (Id. at 3.)
18 Defendant responded:
19 Objection. This request is vague as to “duties” and “in connection.”
Defendant requests this request be rephrased if it is intended to
20 request communications regarding the September 3, 2018 shooting
of Plaintiff.
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22 (Id.)
23 Why defendant found the terms “duties” and “in connection” vague is entirely unclear to
24 the undersigned. Moreover, in the Joint Statement defendant’s argument does not address
25 vagueness, but now asserts the entirely new argument that “[t]here are no documents to compel
26 because no critical incident investigation was done.” (Id. at 6.) This is erroneous in two respects.
27 First, “objections not raised in a written response to discovery may not be raised for the
28 first time in a discovery motion.” O. L. v. City of El Monte, Case No. 2:20-cv-0797 RGK
1 (JDEx), 2021 WL 926105, at *3 (C.D. Cal. Jan. 11, 2021). “Similarly, objections asserted in
2 discovery responses but not raised in briefing on a discovery motion are also waived.” (Id.) In
3 this regard, it is impressible for defendant to assert an objection in response to plaintiff’s
4 discovery request and then assert an entirely different reason in opposing plaintiff’s motion to
5 compel.
6 Moreover, that a Critical Incident Investigation was not done is not responsive to
7 plaintiff’s request. The request unambiguously seeks “all documents communicated to or from
8 the Risk Management Administrator . . . in connection with the September 3, 2018 shooting by
9 Brad Wheat.” (JS (ECF No. 76) at 3.) That a Critical Incident Investigation was not done does
10 not mean that the Risk Management Administrator did not receive or send documents regarding
11 the September 3, 2018 shooting. It may be that defendants conducted a search and found no
12 responsive documents. But, again, instead of stating that in response to plaintiff’s request,
13 defendant simply objected based on vagueness.
14 For the reasons stated above, in the Joint Statement, and at the May 14, 2021 hearing, the
15 undersigned will grant plaintiff’s motion to compel. This is the fifth time the undersigned has
16 granted a motion to compel filed by plaintiff. After repeated warnings, in granting plaintiff’s
17 fourth motion to compel the undersigned awarded plaintiff monetary sanctions, with the amount
18 to be determined after further briefing.2 (ECF No. 72.) Here, plaintiff’s motion again seeks
19 monetary sanctions and defendants again fail to even proffer an argument in opposition. (JS
20 (ECF No. 76) at 11-13.) This time, however, plaintiff has provided sufficient documentation in
21 support and the undersigned finds the requested fees reasonable.
22 As defendants were previously advised, “[t]he discovery process in theory should be
23 cooperative and largely unsupervised by the district court.” Sali v. Corona Regional Medical
24 Center, 884 F.3d 1218, 1219 (9th Cir. 2018). “When that cooperation breaks down, the district
25 court has broad discretion to regulate discovery conduct and, if needed, impose a wide array of
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27 2 On May 10, 2021, plaintiff filed a statement in support of the award of attorney’s fees. (ECF
No. 78.) On May 13, 2021, defendants filed a statement of non-opposition. (ECF No. 79.)
28 Accordingly, plaintiff’s unopposed request will be granted.
1 sanctions.” Infanzon v. Allstate Insurance Company, 335 F.R.D. 305, 311 (C.D. Cal. 2020).
2 When the court grants a motion to compel it must “after giving an opportunity to be heard,”
3 award “reasonable expenses incurred in making the motion, including attorney’s fees,” unless the
4 “opposing party’s position was ‘substantially justified’ or that ‘other circumstances make an
5 award of expenses unjust.’” Id. (quoting Fed. R. Civ. P. 37(a)(5)(A)). “The burden of
6 establishing this substantial justification or special circumstances rests on the party being
7 sanctioned.” Id. Moreover, “[u]nder its ‘inherent powers,’ a district court may also award
8 sanctions in the form of attorneys’ fees against a party or counsel who acts ‘in bad faith,
9 vexatiously, wantonly, or for oppressive reasons.’” Leon v. IDX Systems Corp., 464 F.3d 951,
10 961 (9th Cir. 2006) (quoting Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir.
11 1997)).
12 Here, in light of defendants repeated obstruction of discovery, failure to adequately
13 support its objections, and failure to demonstrate substantial justification or special
14 circumstances, the undersigned will grant plaintiff’s request for sanctions.3 Defendants are
15 further cautioned that, at some point, the undersigned may find monetary sanctions insufficient to
16 correct defendants’ behavior and look to more extreme sanctions.
17 Accordingly, upon consideration of the arguments on file and those made at the hearing,
18 and for the reasons set forth on the record at that hearing and above, IT IS HEREBY ORDERED
19 that:
20 1. Plaintiff’s April 12, 2021 amended motion to compel (ECF No. 66) is granted;
21 2. Within seven days of the date of this order defendants shall produce responsive
22 documents;
23 3. Within seven days of the date of this order defendants shall provide a declaration
24 setting forth what the search for the responsive documents consisted of;
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27 3 The undersigned, however, declines plaintiff’s request to bar defendants from taking further
discovery for sixty days as this request is not supported by any further explanation or argument.
28 (JS (ECF No. 76) at 12.) The denial is without prejudice to renewal.
1 4. Within twenty-one days of the date of this order defendants shall pay plaintiff $9,790
2 | in monetary sanctions; and
3 5. Plaintiff's unopposed May 10, 2021 request for $8,585 in attorney’s fees (ECF No 77)
4 | is granted and defendants shall pay plaintiff this fee within twenty-one days of the date of this
5 | order.
6 | Dated: May 17, 2021
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9 ORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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