The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 DARRYL DUNSMORE, et al., Case No.: 20-cv-406-AJB-DDL
12 Plaintiffs,
13 v. ORDER DENYING PLAINTIFFS’
MOTION TO COMPEL
14 DEPOSITION OF SAN DIEGO
15 SAN DIEGO COUNTY SHERIFF’S COUNTY SHERIFF
DEPARTMENT, et al.,
16 [Dkt. No. 621]
Defendants.
17
18 Plaintiffs move to compel the deposition of San Diego County Sheriff Kelly
19 Martinez. The Court denies the motion because Plaintiffs have not demonstrated
20 that Sheriff Martinez has first-hand knowledge of information that is material to
21 Plaintiffs’ claims and that cannot reasonably be obtained from other sources.
22 I.
23 BACKGROUND
24 Plaintiffs are a certified class of individuals “who are now, or will be in the
25 future, incarcerated in any of the San Diego County Jail facilities.” Dkt. No. 435 at
26 10. Plaintiffs’ Third Amended Complaint asserts multiple causes of action under
27 42 U.S.C. § 1983 against the County of San Diego and other Defendants, and
28 seeks declaratory and injunctive relief to “remedy the dangerous, discriminatory,
1 and unconstitutional conditions in the Jail.” Dkt. No. 231, ¶ 4.
2 Recognizing the broad scope of Plaintiffs’ claims, the Court authorized
3 Plaintiffs to take up to 40 hours of depositions of the individuals designated by the
4 San Diego Sheriff’s Department under Federal Rule of Civil Procedure 30(b)(6).
5 Dkt. No. 454 at 4. The Sheriff’s Department designated approximately 16
6 witnesses to testify on different topics. Dkt. No. 621-2 at 2-3. Plaintiffs also have
7 deposed nonparty Naphcare of San Diego, LLC and multiple fact witnesses in their
8 individual capacities. Id. at 3-4.
9 On April 24, 2024, Plaintiffs filed the instant motion to compel the deposition
10 of Sheriff Martinez. The Court held a motion hearing on May 15, 2024, and this
11 Order follows.1
12 II.
13 DISCUSSION
14 Plaintiffs move to compel the deposition of Sheriff Martinez to testify
15 regarding the Sheriff’s Department’s “prioritization and implementation of policies
16 aimed at reform” in the San Diego County jails. Dkt. No. 621-1 at 4. Specifically
17 with respect to their claim for injunctive relief, Plaintiffs contend that “Sheriff
18 Martinez’s testimony regarding the policies she plans to prioritize and the
19 resources that are available to her is the most relevant evidence available in
20 assessing whether and to what degree judicial oversight is needed.” Id. at 6.
21 “A party seeking to prevent a deposition must generally meet a high burden.”
22 Greer v. Cnty. of San Diego, No. 19-CV-378-JO-DEB, 2022 WL 2134601, at *1
23 (S.D. Cal. June 14, 2022).2 However, “the settled rule across the circuits is that
24
25
26 1 The parties have resolved the other issues raised in the motion. Dkt. Nos.
678, 662.
27
2 All citations and internal quotation marks are omitted, and emphasis is
28
1 absent extraordinary circumstances, high-ranking officials may not be subjected to
2 depositions or called to testify regarding their official actions.” Coleman v.
3 Schwarzenegger, No. CIV S-90-0520LKKJFMP, 2008 WL 4300437, at *2 (E.D.
4 Cal. Sept. 15, 2008) (Reinhardt, Karlton and Henderson, JJ.); see also K.C.R. v.
5 Cnty. of Los Angeles, No. CV 13-3806 PSG SSX, 2014 WL 3434257, at *3 (C.D.
6 Cal. July 11, 2014) (“Heads of government agencies in particular are not normally
7 subject to deposition absent extraordinary circumstances.”). The rationale for this
8 “apex” doctrine is twofold: (1) “to protect the officials from discovery that will burden
9 the performance of their duties, particularly given the frequency with which such
10 officials are likely to be named in lawsuits” and (2) “to protect the officials from
11 unwarranted inquiries into their decision-making process.” Coleman, 2008 WL
12 4300437, at *2. Accordingly, “for depositions of high-ranking executives or officials
13 – so-called ‘apex’ witnesses – the burden is placed on the party seeking the
14 deposition to show extraordinary circumstances justify the deposition.” Greer,
15 2022 WL 2134601, at *1. “The extraordinary circumstances test may be met where
16 high-ranking officials have direct personal factual information pertaining to material
17 issues in an action, and the information to be gained is not available through any
18 other sources.” Coleman, 2008 WL 4300437 at *2.
19 “To invoke apex protection, the party resisting discovery must first
20 demonstrate they are a high-ranking official.” Greer, 2022 WL 2134601 at *2.
21 Here, the parties agree that Sheriff Martinez is an apex deponent. Dkt. No. 621-1
22 at 4-5; Dkt. No. 633 at 6-7. The Court agrees with the parties and the prevailing
23 weight of authority that the apex doctrine applies to Sheriff Martinez. See, e.g.,
24 Myles v. Cnty. of San Diego, No. 15CV1985-BEN (BLM), 2016 WL 4366543, at *4
25 (S.D. Cal. Aug. 15, 2016) (San Diego County Sheriff is apex deponent); Greer,
26 2022 WL 2134601, at *2 (same); K.C.R., 2014 WL 3434257, at *6 (finding “a sheriff
27 is a high-ranking government official entitled to protection” and collecting cases).
28 / / /
1 Where the party resisting discovery establishes that the deponent is a high-
2 ranking official, the burden shifts to the party seeking the deposition to show that
3 extraordinary circumstances justify the deposition. Greer, 2022 WL 2134601, at
4 *1. Specifically, the party seeking to depose an apex government official must
5 show:
6 (1) the official’s testimony is necessary to obtain relevant information
that is not available from another source; (2) the official has first-hand
7
information that cannot reasonably be obtained from other sources;
8 (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
9
his government duties; and (5) the evidence sought is not available
10 through less burdensome means or alternative sources.
11 Cervantes v. San Diego Police Chief Shelley Zimmerman, No. 17-CV-1230-BAS-
12 NLS, 2019 WL 3072307, at *4 (S.D. Cal. July 15, 2019). Stated otherwise, “[i]n
13 determining whether to allow a deposition of a high-ranking official, courts consider
14 (1) whether the deponent has unique first-hand, non-repetitive knowledge of the
15 facts at issue in the case, and (2) whether the party seeking the deposition has
16 exhausted other less intrusive discovery methods.” K.C.R., 2014 WL 3434257, at
17 *3.
18 As noted above, Plaintiffs contend that Sheriff Martinez has first-hand
19 knowledge of “the policies she plans to prioritize and the resources that are
20 available to her,” which they contend is relevant “in assessing whether and to what
21 degree judicial oversight is needed.” Dkt. No. 621-1 at 6. The evidence submitted
22 by Plaintiffs includes biographical information for Sheriff Martinez and other high-
23 ranking Sheriff’s Department officials, emails to and from Sheriff Martinez
24 regarding news releases and body scanner costs, an email about the state audit
25 of the jails while she was the Undersheriff and her communications with the Board
26 of Supervisors. Dkt. No. 621-2 at 6, 10, 12, 22, 26, 37, 40, 61, 107, 109, 129. This
27 evidence supports the conclusion that Sheriff Martinez leads the Sheriff’s
28 Department, but it does not establish that she has “direct personal factual
1 information pertaining to material issues” in this case. Coleman, 2008 WL
2 4300437 at *2. For example, the emails provided by Plaintiffs show Sheriff
3 Martinez has approved press releases and proposed changes to the releases
4 drafted by others. See, e.g., Dkt. No. 621-2 at 37 (“Good input. If it hasn’t already
5 gone out that’s a good addition.”) and 40 (“Good point.”). This evidence is
6 insufficient to show that Sheriff Martinez has “unique first-hand, non-repetitive
7 knowledge of the facts at issue in the case.” K.C.R., 2014 WL 3434257, at *3.
8 Plaintiffs likewise have not established that Sheriff Martinez “has first-hand
9 information that cannot reasonably be obtained from other sources.” Cervantes,
10 2019 WL 3072307, at *4. On April 17, 2024, Plaintiffs deposed former Assistant
11 Sheriff Theresa Hydar-Adams, who retired on March 28, 2024. Dkt. No. 621-3.
12 The deposition excerpts provided by Plaintiffs indicate Hydar-Adams testified
13 regarding the priorities communicated to her by Sheriff Martinez (id. at 6-9) but that
14 Hydar-Adams lacked information regarding the Sheriff’s Department’s current
15 plans in certain areas given her retirement 20 days earlier. Dkt No. 621-3 at 12
16 (whether Department is considering body scanning), 16 (current efforts to address
17 understaffing), 19 (sick call waiting times) and 21 (future use of AI in medical
18 services). But Plaintiffs do not show how each of these specific points are “material
19 issues” in the case. Coleman, 2008 WL 4300437 at *2. Even assuming these are
20 material issues, “a party seeking to depose a high-ranking official must make a
21 showing as to what efforts have been made to determine whether the information
22 is otherwise available and the extent to which their efforts failed to uncover such
23 information.” Coleman, 2008 WL 4300437, at *4. Plaintiffs’ motion does not
24 explain what efforts they made to obtain information regarding the Sheriff’s
25 Department’s plans and priorities from the approximately 16 Sheriff’s Department
26 designees under Rule 30(b)(6) or the other Sheriff’s Department personnel who
27 were deposed in their individual capacities.
28 / / /
1 Plaintiffs contend this case is analogous to Ahlman v. Barnes, No.
2 820CV00835JGBSHK, 2021 WL 1570838 (C.D. Cal. Mar. 9, 2021), where the
3 court ordered the Orange County Sheriff to sit for a deposition regarding the
4 Orange County Sheriff’s Department’s COVID-19 policies. The Ahlman plaintiffs
5 “provided evidence that Sheriff Barnes is personally involved in and ultimately sets
6 forth COVID-19 related policies.” Id. at *6. That evidence included a letter the
7 Sheriff sent to the California Governor, a personal Twitter post, and a personal
8 statement regarding the release of inmates due to the COVID-19 pandemic. Id.
9 The Ahlman court concluded that, “[i]n looking at Sheriff Barnes’s public
10 statements as a whole, it is clear that he was not only involved in setting COVID-
11 19 related policies within the Orange County Jail, but he also has personal
12 knowledge of how COVID-19 is impacting the Orange County Jail.” Id. at *7.
13 Moreover, although the Sheriff identified the Assistant Sheriff as someone with
14 “unique personal knowledge,” the Ahlman court found the Assistant Sheriff “either
15 provided contradictory testimony . . . or identified Sheriff Barnes as the individual
16 with personal knowledge of the issue.” Id.
17 The factual record in Ahlman demonstrated that the Orange County Sheriff
18 had “unique, personal knowledge of the facts of the case” and that the plaintiffs
19 had been “unsuccessful in seeking the information from other less intrusive
20 sources.” Id. at *8.3 Here, in contrast, Plaintiffs have not shown that Sheriff
21 Martinez has unique personal knowledge of material issues in the case “that
22 cannot reasonably be obtained from other sources” such that her testimony is
23 “essential” to the case. Cervantes, 2019 WL 3072307, at *4.
24
25
3 Ahlman found “the burden remains with the party seeking the protective
26
order, in this case Defendants, to prevent the taking of the deposition.” Id. at *5.
27 This Court finds the burden properly lies with the party seeking an apex deposition
to show that extraordinary circumstances justify the deposition. Greer, 2022 WL
28
1 ill.
2 CONCLUSION
3 For the foregoing reasons, Plaintiffs’ motion to compel the deposition of
4 || Sheriff Martinez [Dkt. No. 621] is DENIED.
5 || IS SO ORDERED.
6 || Dated: June 6, 2024 ait
Ctl edb
° on. David. Lesher
9 United States Magistrate Judge
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28