United States District Court, D. New Mexico
ROBERT G. MOYA, Plaintiff,
CITY OF CLOVIS, and OFFICER BRENT AGUILAR and SARGENT JAMES GURULE, in their individual capacities and as employees of the City of Clovis, Defendants.
ORDER GRANTING MOTION TO COMPEL
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Plaintiff's
motion to compel discovery responses. (Doc. 49). In two
requests for production, Plaintiff sought from Defendant
Brent Aguilar documents comprising his “personnel
file” and those “concerning or at all relevant to
any formal or informal complaint made against [him][.]”
(Id., at 2). Although initially resistant, Aguilar
did produce some responsive documents, but withheld others,
objecting on privilege, overbreadth, relevance, undue burden,
and vagueness grounds. In response to the motion, Aguilar
calls the demand for his personnel file and complaints
against him as “irrelevant kitchen sink
requests.” He also insists he is exempted from
providing “internal evaluations, disciplinary reports,
” or documentation on “promotion, demotion, or
termination information; or performance assessments”
that might be contained in his personnel file. (Doc. 52, at
5) (citing Cox v. N.M. Dep't Public Safety, 242
P.3d 501 (N.M. App. 2010)). Having considered the
parties' submissions, the Court disagrees with Aguilar
and GRANTS Plaintiff's motion.
29, 2017, Aguilar, then an officer with the City of Clovis
Police Department, allegedly released his police dog, Leo,
ultimately resulting in Plaintiff's subduction and severe
injury. (Doc. 1). At the time, Plaintiff says he was
complying with police orders to surrender himself from behind
a shed. (Id.). This lawsuit followed. In his
three-count complaint, Plaintiff alleges (1) Aguilar and
Sergeant James Gurule unreasonably seized him in violation of
the Fourth Amendment; (2) the officers used excessive force
in violation of the Fourth Amendment by allowing Leo to
attack Plaintiff; and (3) the City of Clovis has a policy or
custom of inadequate supervision, insufficient training, and
failing to discourage constitutional violations that caused
the deprivation of Plaintiff's rights. (Doc. 1)
of discovery, Plaintiff propounded, among others, the
following two requests for production:
5. Any and all documents that comprise all or a part of your
personnel file, including disciplinary records, and any other
documents concerning your hiring, training, duties,
performance, assignments, and mental and physical condition.
6. Any and all documents concerning or at all relevant to any
formal or informal complaint made against or about you, from
any source concerning any subject matter.
responses cited the relevancy, breadth, and privacy
concerns identified above and refused to produce responsive
records. In a so-called Rule 37 letter, Plaintiff challenged
Aguilar's legal bases for objecting, agreed “to a
redaction of the most sensitive of personal information like
address, date of birth, and social security number, ”
and asked for a privilege log. (Doc. 49-1). Although Aguilar
stood by his objections, he ultimately produced 178 pages
from his personnel file along with a privilege log. According
to the log, Aguilar refused to disclose records related to an
internal investigation, investigative report, and his
employment application, which, in turn, included a background
check and a psychological evaluation. (Doc. 49-3).
Rule of Procedure 26 allows for the discovery of “any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). “When requested
discovery appears relevant, the party objecting to production
has the burden of establishing the lack of relevance by
demonstrating that the request falls outside the scope set
forth in Rule 26(b)(1), or that the requested discovery is of
such marginal relevance that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of
broad disclosure.” Shotts v. Geico Gen. Ins.
Co., 2017 U.S. Dist. LEXIS 171515, at *1 (W.D. Okla.
Oct. 17, 2017) (citation omitted). Likewise, where a party
resists production of documents on privilege grounds, that
party carries “the burden of establishing that the
privilege applies.” Zander v. Craig Hosp., 743
F.Supp.2d 1225, 1231-32 (D. Colo. 2010) (citation omitted).
Moreover, “the resisting party must expressly assert
[the privilege] and describe the nature of the
purportedly-privileged documents, ordinarily by tendering a
privilege log.” Id.
resists Requests for Production 5 and 6 on four grounds: they
(1) impinge on the “self-critical” privilege; (2)
implicate “matters of opinion” exempt from
disclosure; (3) contravene a constitutional right to privacy;
and (4) lack relevance. The Court rejects each basis.