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Moya v. City of Clovis

United States District Court, D. New Mexico

September 4, 2019

ROBERT G. MOYA, Plaintiff,
v.
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

          KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         BACKGROUND

         On May 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)

         As part 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.

(Doc. 52-1).

         Aguilar's responses[1] 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).

         STANDARD

         Federal 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.

         DISCUSSION

         Aguilar 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.

         Self-critical ...


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