Estate of Amilcar Perez Lopez et al v. Suhr et al

Northern District of California, cand-4:2015-cv-01846

ORDER by Magistrate Judge Jacqueline Scott Corley granting {{79}} Joint Discovery Letter To Compel Deposition Testimony of Material Third Party Witness.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ESTATE OF AMILCAR PEREZ LOPEZ, et Case No.15-cv-01846-HSG (JSC) al., 8 Plaintiffs, ORDER GRANTING DEPOSITION 9 TESTIMONY OF MATERIAL THIRD v. PARTY WITNESS 10 GREG SUHR, et al., Re: Dkt. No. 79 11 Defendants. 12 Northern District of California United States District Court 13 This case arises out of the officer involved shooting of Amilcar Perez-Lopez ("Lopez") by 14 San Francisco police officers Craig Tiffe and Eric Reboli (collectively, "Defendants"). The 15 parties jointly seek an order compelling the deposition of third party witness Abraham Perez 16 ("Perez") who is currently in custody on unrelated criminal charges. (Dkt. No. 79 at 1.) Perez's 17 counsel contacted defense counsel and on Mr. Perez's behalf asserted Fifth Amendment objections 18 to the deposition testimony sought by the parties. Perez's counsel, however, has not contacted the 19 Court regarding such objections. At this stage, there is no evidence that Perez's deposition could 20 be used in criminal prosecution or could lead to other evidence that could be so used; therefore the 21 Court GRANTS the parties' request to compel Perez's deposition. 22 BACKGROUND 23 On February 26, 2015, Defendants responded to a call regarding a male individual 24 allegedly chasing another man with a knife. (Id.) The individual with the alleged knife was 25 Amilcar Perez-Lopez. (Id.) The person he was allegedly chasing was third party witness Perez. 26 Defendants eventually shot Lopez. (Id.) Perez witnessed the shooting and made statements 27 regarding the incident. (Id. at 2.) Both parties seek the deposition of Perez. (Id.) 28 Defendants recently located Perez in custody at the San Francisco County Jail under a 1 different name. (Id.) He is in custody on unrelated criminal charges. (Id.) On April 17, 2017, 2 defendants hand served a deposition subpoena on Perez for a deposition at the County Jail to take 3 place on April 27, 2017. (Id.) On April 25, 2017, Rebecca Young, a public defender representing 4 Perez on unrelated criminal charges, contacted defense counsel. Ms. Young wrote that she will 5 advise Perez to assert his Fifth Amendment privilege against self-incrimination at the deposition. 6 (Dkt. No. 79-1.) Also on April 25, 2017, Mr. Lewis Romero, a private attorney, contacted defense 7 counsel stating he was representing Perez in regards to the deposition. (Dkt. No. 79 at 2.) 8 The next day, Mr. Romero advised defense counsel that he would instruct his client to 9 assert his Fifth Amendment right to silence in response to all deposition questions. (Dkt. No. 79- 10 2.) Mr. Romero also requested that the deposition be postponed in order to meet and confer 11 regarding the parameters. (Id.) Defense counsel agreed to continue Perez's deposition in order to 12 meet and confer with Mr. Romero about the scope of the deposition and legal basis for asserting Northern District of California United States District Court 13 the Fifth Amendment privilege. (Id.) Defense counsel contacted Mr. Romero again on May 2, 14 2017, however Mr. Romero has not responded. (Dkt. Nos. 79 at 2, 79-3.) The parties then filed a 15 joint discovery letter to this Court seeking an order to compel Perez's deposition. (Dkt. No. 79.) 16 Perez's attorneys were copied on the discovery letter, but have not contacted the Court. (Dkt. No. 17 79 at 5.) 18 DISCUSSION 19 As with discovery generally, deposition questions may relate to "any non-privileged matter 20 that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). In the civil context, the 21 invocation of the Fifth Amendment privilege is limited to those circumstances in which the person 22 invoking the privilege reasonably believes that his disclosures could be used in a criminal 23 prosecution, or could lead to other evidence that could be used in that manner. See United States 24 v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995). The privilege extends to those witnesses who 25 have "reasonable cause to apprehend danger from a direct answer" but it does not protect those 26 who fear "a danger of imaginary and insubstantial character." Ohio v. Reiner, 532 U.S. 17, 21 27 (2001). 28 There is no evidence before the Court that counsel's questions will touch upon information 2 1 that could be used in a criminal prosecution of Perez. Should any questions touch on information 2 related to a separate criminal proceeding or potential criminal proceeding, Perez's attorney may 3 object accordingly. If Perez's attorney instructs his client to not answer, Defendants' remedy is to 4 make a motion to compel answers. See Fed. R. Civ. P. 37(a)(3) & (4); see also Estrada v. 5 Rowland (9th Cir. 1995) 69 F.3d 405, 406. Accordingly, the Court grants the parties' motion to 6 compel Perez's deposition. 7 Defendants' have also filed an administrative motion to file under seal transcripts of 8 Perez's recorded audio statements to the police. (Dkt. No. 80.) The Ninth Circuit uses the "good 9 cause" test for documents that a party obtained through discovery and attached to a non- 10 dispositive motion. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (2006). 11 Under Civil Local Rule 79–5(b) a party designating material as confidential "must file a 12 declaration as required by subsection 79–5(d)(1)(A) establishing that all of the designated material Northern District of California United States District Court 13 is sealable." Id. § 79–5(e)(1). Defendants argue that because the audio files were transcribed by 14 counsel the transcripts are attorney work product. "The work product doctrine, codified in Federal 15 Rule of Civil Procedure 26(b)(3), protects 'from discovery documents and tangible things 16 prepared by a party or his representative in anticipation of litigation.' " In re Grand Jury 17 Subpoena, 357 F.3d 900, 906 (9th Cir. 2004). Here, Defendants' submitted a declaration stating 18 the transcripts were prepared by defense counsel. (Dkt. No. 80-1 at ¶3). Therefore, the Court 19 concludes the transcripts are attorney work product and grants Defendants' motion to file under 20 seal. 21 CONCLUSION 22 For the reasons stated above, the Court GRANTS the parties' request to compel the 23 deposition of Perez and Defendants' motion to file under seal the transcripts of Perez's statements 24 to the police. 25 This Order disposes of Docket No. 79. 26 IT IS SO ORDERED. 27 Dated: June 15, 2017 28 3 1 JACQUELINE SCOTT CORLEY 2 United States Magistrate Judge 3 4 5 6 7 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4