Soto v. County of Sacramento ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SILVIA SOTO, an individual, LATANYA No. 2:19-cv-0910 TLN DB ANDREWS, an individual, M.M.S., a 12 minor, and M.M.S., a minor, by and through their guardian ad litem, SILVIA 13 SOTO, in each case both individually and ORDER as successors-in-interest to the ESTATE 14 OF MARSHALLMILES, Deceased, 15 Plaintiffs, 16 v. 17 COUNTY OF SACRAMENTO, STATE OF CALIFORNIA, SCOTT JONES, 18 19 Defendants. 20 21 On August 28, 2020, this matter came before the undersigned pursuant to Local Rule 22 302(c)(1) for hearing of defendant Sacramento County Sheriff Scott Jones’ motion for a 23 protective order. (ECF No. 51.) Attorney Karen Joynt appeared via Zoom on behalf of plaintiffs 24 and attorney Nicole Cahill appeared via Zoom on behalf of defendant. Oral argument was heard 25 and defendant’s motion was taken under submission. 26 Defendant Jones seeks a protective order from plaintiffs’ notice of deposition pursuant to 27 “the apex deposition privilege.” (JS (ECF No. 50) at 4.) “[T]he settled rule across the circuits is 28 that absent extraordinary circumstances, high-ranking officials may not be subjected to 1 depositions or called to testify regarding their official actions.” Coleman v. Schwarzenegger, 2 Nos. CIV S-90-0520 LKK JFM P, C01-1351 THE, 2008 WL 4300437, at *2 (E.D. Cal. Sept. 15, 3 2008); see also Green v. Baca, 226 F.R.D. 624, 648 (C.D. Cal. 2005) (“high public officials 4 should not, absent extraordinary circumstances, be called to testify regarding their reasons for 5 taking official actions.”). “In determining whether to allow an apex deposition, courts consider 6 (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in 7 the case and (2) whether the party seeking the deposition has exhausted other less intrusive 8 discovery methods.” Apple Inc. v. Samsung Electronics Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 9 2012). 10 “When a witness has personal knowledge of facts relevant to the lawsuit, even a corporate 11 president or CEO is subject to deposition” and “[a] claimed lack of knowledge, by itself it is 12 insufficient to preclude a deposition.” Apple Inc., 282 F.R.D. at 263. “However, “where a high- 13 level decision maker removed from the daily subjects of the litigation has no unique personal 14 knowledge of the facts at issue, a deposition of the official is improper, especially where the 15 information sought can be obtained through less intrusive means or from lower level employees 16 with more direct knowledge of the facts at issue.” Jordan v. Wonderful Citrus Packing LLC, 17 Case No. 1:18-cv-0401 AWI SAB, 2019 WL 176264, at *9 (E.D. Cal. Jan. 11, 2019). 18 “[C]ourts are inconsistent as to whether the party resisting the discovery or the party 19 seeking to depose the high-ranking official bears the burden related to whether the deposition 20 should go forward.” Estate of Levingston v. County of Kern, 320 F.R.D. 520, 525 (E.D. Cal. 21 2017). And, “at least one court has suggested that police chiefs, and presumably sheriffs as well, 22 do not constitute high government officials.” Green, 226 F.R.D. at 649. However, most “courts 23 throughout the Ninth Circuit have determined that the position of sheriff is a high-ranking official 24 to whom the apex doctrine may apply.” Estate of Levingston, 320 F.R.D. at 526. 25 Here, even assuming that the burden is defendant’s, the undersigned finds that defendant 26 has met that burden. In this regard, although plaintiffs assert that defendant Jones “has unique, 27 first-hand knowledge” of relevant facts, they refer to only vague and conclusory concepts such as 28 Jones’ “leadership and direction,” or the “culture, priorities, and the duties of the Department at 1 issue.” (JS (ECF No. 50) at 11, 12.) In both the joint statement and at oral argument plaintiffs 2 were unable to cite to any example of a unique first-hand, non-repetitive knowledge of facts that 3 defendant Jones may have that is at issue in this case. As noted by defendants, defendant Jones 4 was not present during the incident, is not the sole source of information regarding training, and 5 was not the author of the training bulletin at issue. 6 Moreover, it appears that plaintiffs have only deposed some of the named defendants and 7 have conducted no 30(b)(6) depositions. (Id. at 5.) Under these circumstances, the undersigned 8 finds that defendant has satisfied the burden. Compare Predybaylo v. Sacramento County, No. 9 2:19-CV-1243 MCE CKD, 2020 WL 4043024, at *2-3 (E.D. Cal. July 17, 2020) (finding “good 10 cause to issue a protective order forbidding the deposition of Sheriff Jones” where evidence 11 suggested Jones lacked personal knowledge and plaintiff failed to exhaust less intrusive means); 12 with Smith v. City of Stockton, No. 2:15-cv-0363 KJM AC, 2017 WL 11435161, at *7 (E.D. Cal. 13 Mar. 27, 2017) (denying motion for protective order where evidence showed “Jones is the person 14 with knowledge of why he did not recommend discipline for the officers, why he did not 15 recommend discipline for the officers involved in prior incidents, why he later wrote a policy on 16 officer shootings, and what was his response to the two memos he received about this shooting” 17 and where “plaintiff . . . has already conducted quite a bit of discovery directed to lower-level 18 officials, and has already deposed the officers involved in the shooting.”). 19 Accordingly, the undersigned will grant defendant’s motion for a protective order. This is 20 not to say, however, that plaintiffs are precluded from seeking to depose defendant Jones in the 21 future. In this regard, if after conducting additional discovery plaintiffs are able to establish that 22 defendant Jones has unique first-hand, non-repetitive knowledge of facts at issue in the case, 23 plaintiffs may again seek to depose defendant Jones and bring a motion to compel that deposition, 24 if necessary and after appropriate meet and confer efforts. See Anderson v. County of Contra 25 Costa, Case No. 15-cv-1673 RS (MEJ), 2017 WL 930315, at *4 (N.D. Cal. Mar. 9, 2017) 26 (“Plaintiff shall first depose a Rule 30(b)(6) witness regarding the Jail’s policies and practices, 27 and any other relevant topics, then meet and confer with Defendants about the necessity and 28 scope of Livingston’s deposition.”). wOASe 2 AU PRIN ED MMVII Vo POO □□□ LIEN PF OAYt OT MT 1 Accordingly, for the reasons stated above and at the August 28, 2020 hearing, IT IS 2 | HEREBY ORDERED that defendant Jones’ July 30, 2020 motion for a protective order (ECF 3 | No. 49) is granted. 4 | Dated: August 29, 2020 2 Vlad” 6 7 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DLB:6 23 DB\orders\orders.civil\Soto09 10.oah.082820 24 25 26 27 28