Moore v. Garnand

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Greg Moore; et al., ) No. CV 19-00290 TUC RM (MAA) 9 ) Plaintiffs, ) ORDER 10 ) vs. ) 11 ) ) 12 Sean Garnand; et al., ) ) 13 Defendants. ) ) 14 ) 15 Pending before the court is the plaintiffs’ motion, filed on January 5, 2024, to compel 16 discovery from the defendant Sean Garnand. Doc. 395. The defendants filed a response on 17 January 19, 2024. Doc. 400. The plaintiffs did not file a reply. 18 Also pending is the plaintiffs’ motion, filed on January 28, 2024, to expedite ruling 19 on the pending motion to compel. Doc. 407. The defendants filed a response on January 20 29, 2024. Doc. 408. They have no objection to an expedited ruling. Doc. 408, p. 2. 21 The plaintiffs in this action (“the Moores”) claim their constitutional rights were 22 violated when the defendants obtained and executed two search warrants in connection with 23 an arson investigation into the destruction of the Forgeus Apartments on June 8, 2017. 24 Complaint, Doc. 1. The Moores bring this action pursuant to 42 U.S.C. § 1983 . Doc. 1, p. 25 4. The first warrant, for DNA and other personal effects, was executed on June 9, 2017. 26 Doc. 1, p. 8. The second warrant, for financial documents, was executed on June 14, 2017. 27 Doc. 1, pp. 9-10. The Moores claim, among other things, that the warrant applications were [28] 1 not supported by probable cause and contained “material misrepresentations and omissions.” 2 Doc. 1, pp. 16-18. 3 The plaintiffs move that the court issue an order compelling the defendant Sean 4 Garnand to comply with Request for Production Nos. 2, 3, 4, and 5 and answer Interrogatory 5 Nos. 15, 16, 19, 22, 23, 24, and 25. Doc. 395, pp. 6-8. [6] 7 Discussion 8 Pursuant to Rule 37(a)(3)(B)(iii-iv), 9 A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if . . . a party 10 fails to answer an interrogatory submitted under Rule 33; or a party fails to produce documents . . . . [11] Fed.R.Civ.P. Rule 34(a)(1)(A) permits a party to serve “a request within the scope of Rule [12] 26(b) . . . to produce . . . any designated documents or electronically stored information . . [13] . .” Fed.R.Civ.P. Rule 33 permits a party to serve written interrogatories. Fed.R.Civ.P. The [14] interrogatories “may relate to any matter that may be inquired into under Rule 26(b).” [15] Fed.R.Civ.P.33(a)(2). [16] And, Rule 26(b)(1) permits discovery requests “regarding any nonprivileged matter [17] that is relevant to any party’s claim or defense and proportional to the needs of the case, [18] considering the importance of the issues at stake in the action, the amount in controversy, the [19] parties’ relative access to relevant information, the parties’ resources, the importance of the [20] discovery in resolving the issues, and whether the burden or expense of the proposed [21] discovery outweighs its likely benefit.” Fed.R.Civ.P. [22] “Upon a motion to compel discovery, the movant has the initial burden of [23] demonstrating relevance.” United States v. McGraw-Hill Companies, Inc., No. CV [24] 13-779-DOC JCGX, 2014 WL 1647385 , at *8 (C.D. Cal. Apr. 15, 2014). “In turn, the party [25] opposing discovery has the burden of showing that discovery should not be allowed, and also [26] has the burden of clarifying, explaining and supporting its objections with competent [27] evidence.” Id. (punctuation modified). [28] 1 Claims 1, 3, and 4 of the Moores’ Complaint remain at issue. Doc. 391, p. 2. In 2 Claim 1, the Moores allege that the warrant application for the first search on June 9, 2017 3 was not supported by probable cause and contained “material misrepresentations and 4 omissions.” Doc. 1, p. 16. They further assert that the defendant, Garnand, used excessive 5 force in executing the warrant. Id. In Claim 3, the Moores allege that the warrant application 6 for the second search on June 14, 2017 was not supported by probable cause and contained 7 “material misrepresentations and omissions.” Doc. 1, pp. 17-18. In Claim 4, the Moores 8 claim that the “detention of Mrs. Moore [during the execution of the second search warrant] 9 escalated into a seizure and arrest.” Doc. 1, pp. 10-11, 18. [10] 11 Documents Related to the Warrant Applications 12 The Moores argue first that this court should compel the defendant Garnand to 13 respond to two groups of discovery requests related to the warrant applications. The first 14 group consists of Request for Production (RFP) No. 2, Interrogatory No. 15, RFP No. 3, 15 Interrogatory No. 19, and RFP No. 5. The second group consists of Interrogatory No. 16 and 16 RFP No. 4. 17 Request for Production (RFP) No. 2 seeks documents “created by or reviewed by the 18 Defendant on or before June 14, 2017, in any way related to the investigation into the 19 Forgeus Fire. . . .” Doc. 395-4, p. 3. Interrogatory No. 15 asks that the defendant “[i]dentify 20 each document relied upon in the telephonic application . . . .” Doc. 395-4, p. 6. RFP No. 21 3 seeks the documents identified in Interrogatory No. 15. Doc. 395-4, p. 8. Interrogatory 22 No. 19 asks the defendant to identify “any document created after June 14, 2017 [that] is 23 relevant to any of the Plaintiffs’ Claims the First through the Fifth . . . .” Doc. 395-4, p. 11. 24 RFP No. 5 seeks the documents identified in Interrogatory No. 19. Doc. 395-4, p. 13. 25 Interrogatory No. 16 seeks documents “relied upon in the preparation of the 26 application for Search Warrant 17 SW 1037 . . . .” Doc. 395-4, p. 8. RFP No. 4 seeks the 27 documents identified in Interrogatory No. 16. Doc. 395-4, p. 10. [28] 1 The Moores explain that these discovery requests seek evidence relating to the 2 defendants’ actions while securing the two search warrants: 17 SW 1017 , which was secured 3 the night of June 8, 2017, and 17 SW 1037 , which was secured on June 14, 2017. Doc. 395, 4 pp. 6-7. [5] 6 Discussion: Warrant Discovery 7 These discovery requests, with the exception of Interrogatory No. 19 and RFP No. 5, 8 are at least relevant to the Moores’ allegations of judicial deception. In the Complaint’s 9 Claim 1, the Moores allege that “Defendants, in the application [for the first search warrant], 10 made material misrepresentations and omissions, to convince the issuing judge that Greg 11 Moore had probably engaged in a pattern of arsons.” Doc. 1, p. 16. In Claim 3, the Moores 12 further allege that “the application [for the second search warrant] contained material 13 misrepresentations and omissions . . . .” Doc. 1, p. 18. These discovery requests seek to 14 establish what documents Garnand knew about and what documents he relied upon when he 15 obtained the search warrants. They are relevant to the Moores’ claim that the warrant 16 applications contained “material misrepresentations and omissions.” See Smith v. Almada, [17] 640 F.3d 931, 937 (9th Cir. 2011) (“To maintain a false arrest claim for judicial deception, 18 a plaintiff must show that the officer who applied for the arrest warrant deliberately or 19 recklessly made false statements or omissions that were material to the finding of probable 20 cause.”) (punctuation modified). 21 In their response brief, the defendants argue primarily that the pending motion is 22 premature because the defendants previously filed a motion to stay discovery and allow the 23 district court to decide the issue of qualified immunity as a preliminary matter. Doc. 400, pp. 24 1-3; see Doc. 394. They similarly argue that the question of qualified immunity may be 25 resolved without the discovery that the Moores are seeking. Doc. 400, pp. 4-5. The motion 26 to stay discovery, however, has since been denied by the district court as an untimely motion 27 for reconsideration of this court’s prior order, which instructed the parties that they must 28 engage in discovery before the qualified immunity issue will be addressed. Doc. 406. The 1 pending motion to compel discovery is no longer premature. Id. The district court has 2 already decided that discovery should proceed before the question of qualified immunity will 3 be addressed. Id. 4 The defendants also argue that the discovery items that the Moores’ seek “have 5 already been provided to the Plaintiffs.” Doc. 400, p. 4. The defendants explain that 6 “Plaintiffs already have the information and documents responsive to Interrogatory No. 16 7 and RFP No. 4.” The Moores did not file a reply disputing this assertion. The motion to 8 compel will be denied as it relates to Interrogatory No. 16 and RFP 4. Doc. 400, p. 5. 9 In their original objection1 to the Moores’ interrogatories, the defendants argued that 10 discovery is precluded by collateral estoppel/issue preclusion. Doc. 395-4, p. 7 (citing Doc. 11 51, Point Two). They did not elaborate on this issue in their response to the pending motion 12 to compel. Doc. 400. 13 In a prior pleading, the defendants argued that the Moores are not entitled to certain 14 discovery, the unredacted Telephonic Affidavit, because of collateral estoppel or issue 15 preclusion. Doc. 51, pp. 3-6. The defendants explained that this concept binds a party to a 16 prior decision if “(1) the issue was actually litigated in the previous proceeding; (2) the 17 parties had a full and fair opportunity and motive to litigate the issue; (3) a valid and final 18 decision on the merits was entered; [and] (4) resolution of the issue was essential to the 19 decision.” Doc. 51, p. 4. 20 The defendants, however, have not presented any evidence showing that the pending 21 discovery issues were actually litigated in a previous proceeding. The defendants seem to 22 argue that the relevant previous proceeding was a state public records action where the 23 Moores tried to obtain certain documents from the Tucson Police Department using the state 24 public records law. See Moore v. City of Tucson, 2020 WL 4495426 (Ariz. App. 2020) (not 25 for publication). But, the fact that a state court ruled that certain documents would not be [27] 1 In their response brief, the defendants state that they “stand by their originally 28 asserted Objections to all of the listed interrogatories.” Doc. 400, p. 6. 1 disclosed pursuant to the state’s public records law does not resolve the issue presented here, 2 which is whether they are discoverable pursuant to the Federal Rules of Civil Procedure. 3 Collateral estoppel/issue preclusion does not preclude discovery in this case. 4 In their original objections to discovery, the defendants also argued that the court 5 lacks subject matter jurisdiction under the Rooker-Feldman doctrine. Doc. 395-5, p. 7 6 (citing Doc. 51, Point Three). They did not elaborate on this issue in their response to the 7 pending motion to compel. Doc. 400. 8 In a prior pleading, the defendants explained that the Rooker-Feldman doctrine holds 9 that federal courts lack subject matter jurisdiction “to exercise appellate review over final 10 state court judgments.” Doc. 51, p. 6 (citing Henrichs v. Valley View Dev., 474 F.3d 609 , 11 613 (9th Cir. 2007)). In other words, the Rooker-Feldman doctrine precludes “cases brought 12 by state-court losers complaining of injuries caused by state-court judgments rendered before 13 the district court proceedings commenced and inviting district court review and rejection of 14 those judgments.” (Doc. 51, p. 7) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., [15] 544 U.S. 280, 284 (2005)). 16 In the Ninth Circuit, the Rooker-Feldman doctrine has been given a relatively strict 17 interpretation. “[F]or Rooker–Feldman to apply, a plaintiff must seek not only to set aside 18 a state court judgment; he or she must also allege a legal error by the state court as the basis 19 for that relief.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004). 20 Ordinarily, the Rooker-Feldman doctrine is raised by a party challenging a federal 21 court’s jurisdiction over a complaint or cause of action. See, e.g., Kougasian v. TMSL, Inc., [22] 359 F.3d 1136, 1140 (9th Cir. 2004) (challenging particular claims). The defendants here 23 seek to use the doctrine to challenge this court’s jurisdiction over a motion to compel 24 discovery. Assuming arguendo that the doctrine can apply to a single discovery motion, the 25 court finds that the Rooker-Feldman doctrine has no application here. 26 The Moores are not seeking to set aside a state court judgment. Neither are they 27 alleging legal error by the state courts. They are seeking an order compelling discovery [28] 1 pursuant to the Federal Rules of Civil Procedure. Rooker-Feldman does not apply. See 2 Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004). 3 The defendants further argue that discovery should not proceed because the Moores 4 are improperly using civil discovery tools to supplement the criminal discovery allowed in 5 a separate case. (Doc. 400, p. 4.) The defendants previously notified the court that Greg 6 Moore was indicted on May 10, 2022 by a state grand jury. (Doc. 369, p. 3.) They seem to 7 be arguing that civil discovery in this case should not proceed because Greg Moore should 8 not be allowed to use relatively liberal civil discovery rules as a means to circumvent 9 relatively restrictive criminal discovery rules. See also Doc. 395-4, p. 5 (citing Campbell 10 v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963); Accord 11 Baker v. SeaWorld Entm’t, Inc., 2018 WL 1726534 , at 2-3 (S.D. Cal. 2018) and 2017 WL 12 6059121, at 2-3 (S.D. Cal. 2017) and McSurely v. McClellan, 426 F.2d 664 , 671-672 13 (D.C.Cir.1970)). 14 The defendants, however, have made no showing that the discovery afforded by the 15 Federal Rules of Civil Procedure is, in fact, more liberal than that permitted by the Arizona 16 Rules of Criminal Procedure. Assuming arguendo that Greg Moore is currently being 17 prosecuted by the State of Arizona, the court cannot conclude that discovery in this case 18 would be improper. 19 The defendants further object to Interrogatory No. 19 and RFP No. 5 on the issue of 20 relevancy. (Doc. 400, p. 4, n. 3.); (Doc. 395-4, p. 11.) Interrogatory No. 19 asks the 21 defendants to identify “any document created after June 14, 2017 [that] is relevant to any of 22 the Plaintiffs Claims the First through the Fifth . . . .” (Doc. 395-4, p. 11.) RFP No. 5 seeks 23 the documents identified in Interrogatory No. 19. (Doc. 395-4, p. 13.) The court agrees. It 24 does not appear that any document created after June 14, 2017, when the second search 25 warrant was executed, would bear on the Moores’ Fourth Amendment rights as they relate 26 to the first and second search warrants. [27] 28 Garnand’s Qualifications 1 In the Second Set of Requests, Interrogatory Nos. 22 and 23, the Moores seek 2 information about Garnand’s qualifications. Interrogatory No. 22 asks the defendant to 3 “[i]dentify each text or publication upon which you rely in conducting arson investigations.” 4 Doc. 395-4, p. 16. Interrogatory No. 23 asks the defendant to “[i]dentify each text or 5 publication you consider authoritative in the investigation of arson.” Doc. 395-4, p. 18. The 6 Moores argue that Garnand’s qualifications are relevant because he “put his training, 7 experience, education and expertise in fire investigation into issue in this case in justifying 8 issuance of both 17 SW 1017 and 17 SW 1037 .” Doc. 395, p. 8 (citing Doc. 1-2, Exhibit A., 9 p. 3). 10 The court agrees that Garnand’s qualifications are relevant at least to the extent that 11 he represented (or implied) in the warrant applications that he is an expert in the field of 12 arson and the warrants should issue, in part, due to the conclusions he has made in light of 13 those qualifications. See Affidavit in support of search warrant 17 SW 1037 , Doc. 1-2. 14 The defendants argue that these issues are premature and should be postponed until 15 after the court resolves the issue of qualified immunity. Doc. 400 p. 5. As the court 16 explained above, the district court has already rejected this approach. Doc. 406. [17] 18 The Defendants’ Opinions 19 Interrogatory No. 24 asks the following: “With regard to any opinions regarding the 20 arson at 2427-2429 N. Forgeus Avenue on June 8, 2017, that you have arrived at: a. State 21 each opinion; b. Identify each document you reviewed in arriving at the opinion; c. Identify 22 each person upon whose counsel you relied in forming each opinion.” Doc. 395-4, pp. 1923 20. Interrogatory No. 25 similarly asks the following: “With regard to any opinions 24 regarding the arson at 3954 E. Blacklidge Drive, Unit * 3 on March 30, 2011 that you have 25 arrived at: a. State each opinion; b. Identify each document you reviewed in arriving at the 26 opinion; c. Identify each person upon whose counsel you relied in forming each opinion.” 27 Doc. 395-4, pp. 19-21. The Moores state in conclusory fashion that these interrogatories are 28 relevant “[w]ithout question.” Doc. 395, p. 8. 1 The court finds that while these interrogatories might encompass some discoverable 2 || material, their scope is so broad that the “burden or expense of the proposed discovery 3 || outweighs its likely benefit.” Fed.R.Civ.P.26. Any opinions that the defendants formed after 4 || the search warrants were executed are probably irrelevant. Doc. 395-4, pp. 19-21. Opinions 5 || formed before the warrants were obtained could be relevant, but the interrogatories are not 6 || limited to those opinions that relate to the Moores’ outstanding Claims. They seek the 7 || defendants’ opinions regarding the two arsons without qualification. Doc. 395-4, pp. 19-21. 8 || These discovery requests sweep too broadly to comply with Fed.R.Civ.P.26(b)(1). 10 IT IS ORDERED that the plaintiffs’ motion, filed on January 5, 2024, to compel 11 || discovery from the defendant Sean Garnand is GRANTED in PART. Doc. 395. The 12 || defendant must respond to Interrogatory Nos. 15,22, and 23 and Request for Production Nos. 13 || 2 and 3 within 14 days from the filing of this order. The motion is otherwise Denied. 14 IT IS FURTHER ORDERED that the plaintiffs’ motion, filed on January 28, 2024, 15 || to expedite ruling on the pending motion to compel is GRANTED to the extent this order 16 || provides the relief requested. Doc. 407. [17] 18 DATED this 15" day of February, 2024. [19] Ko GO DA Baa IE ie Honorable Michael A. Ambri 23 United States Magistrate Judge [28] _O.