Moore v. Garnand ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Greg Moore; et al., ) No. CV 19-0290 TUC RM (LAB) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is the plaintiffs’ motion for sanctions filed on August 31, 16 2020. (Doc. 215) The defendants filed a response on September 14, 2020. (Doc. 224) The 17 plaintiffs did not file a reply. 18 The plaintiffs in this action claim their constitutional rights were violated when the 19 defendants executed search warrants in connection with a Tucson Police Department arson 20 investigation into the destruction of the Forgeus Apartments on June 8, 2017. (Doc. 1) The 21 plaintiffs bring this action pursuant to 42 U.S.C. § 1983. (Doc. 1, p. 4) The first warrant, for 22 DNA and other personal effects, was executed on June 9, 2017. (Doc. 1, p. 8) The second 23 warrant, for financial documents, was executed on June 14, 2017. (Doc. 1, pp. 9-10) The 24 defendants apparently believe that the plaintiffs may be responsible for the fire that destroyed 25 these apartments. (Doc. 1) The investigation into the Forgeus fire is ongoing. 26 In the pending motion, the plaintiffs move pursuant to Fed.R.Civ.P. 37(b)(2)(A) that 27 the court impose sanctions against the defendants and counsel for failing to comply with this 28 court’s prior discovery order, Doc. 198. (Doc. 215) They move specifically that this court 1 find the defendants in contempt of court, order immediate delivery of the withheld 2 documents, and award costs and reasonable attorney fees. (Doc. 215, p. 4) 3 Fed.R.Civ.P 37(b)(2)(A) provides that 4 If a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue further just orders. They may include 5 the following: 6 * * * 7 (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. 8 9 Instead of or in addition to other remedial orders, “the court must order the disobedient party, 10 the attorney advising that party, or both to pay the reasonable expenses, including attorney’s 11 fees, caused by the failure, unless the failure was substantially justified or other 12 circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C). 13 14 Discussion 15 Earlier in the case, the plaintiffs filed a motion to compel production of documents 16 that had been seized from their offices by the defendants on June 14, 2017. (Doc. 133) This 17 court granted the motion on July 9, 2020. (Doc. 198) The defendants subsequently produced 18 10,664 documents in accordance with this court’s order. (Doc. 224, p. 2) 19 The defendants did not release seven documents, however, because they discovered 20 that one of the court’s prior orders held that those documents were subject to the Law 21 Enforcement Investigatory Privilege. (Doc. 224, p. 2) The seven documents also have been 22 deemed privileged by a prior order of the Arizona Superior Court in a separate proceeding. 23 (Doc. 224, p. 2) 24 When the court considered the plaintiffs’ earlier motion to compel, the defendants 25 were unaware of this privilege issue. (Doc. 224, p. 4) The issue was not presented by either 26 party or considered by this court. The defendants only discovered the issue when they were 27 preparing to comply with this court’s order to disclose the documents. The defendants 28 1 | subsequently filed a notice on August 7, 2020 explaining why these seven documents were 2 || being withheld. (Doc. 205) 3 On August 31, 2020, the plaintiffs filed the pending motion that the court sanction the 4 || defendants and counsel for failure to disclose the seven documents. (Doc. 215) They do not 5 || address in their motion the privilege issue raised in the defendants’ notice. /d. In their 6 || response brief, the defendants argue in accordance with their notice that the seven documents 7 || need not be disclosed because a prior court order held that they fell within the Law 8 || Enforcement Investigatory Privilege. (Doc. 224) The plaintiffs did not file a reply 9 || addressing the defendants’ privilege argument. 10 11 IT IS ORDERED that the plaintiffs’ motion for sanctions and costs and attorney fees 12 || filed on August 31, 2020 is DENIED. (Doc. 215) In accordance with the law-of-the-case 13 }| doctrine, the defendants reasonably withheld from production those documents that this court 14 |] previously deemed privileged. See Askins v. U.S. Dep't of Homeland Sec., 899 F.3d 1035, 15 || 1042 (9" Cir. 2018) (“The law-of-the-case doctrine generally provides that when a court 16 |] decides upon a rule of law, that decision should continue to govern the same issues in 17 |] subsequent stages in the same case.”) (punctuation modified). 18 19 DATED this 1“ day of December, 2020. 20 21 22 Ree QO. Bowmen Leslie A. Bowman 23 United States Magistrate Judge 24 25 26 27 28 -3-