1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF WILLIAM HENNEFER et No. 2:22-cv-00389-TLN-KJN al., 12 ORDER Plaintiffs, 13 v. 14 YUBA COUNTY et al., 15 Defendants. 16

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18 Presently pending before this court is plaintiff’s motion to compel and for sanctions. 19 (ECF No. 36.) Plaintiff asks this court to order the retaking, in part, of the depositions of Deputy 20 Tyler Eck, Deputy Valentino Aguirre, Deputy Teng Saecheo, and Detective Natalie Mullins, with 21 costs and fees paid by defendant; order forensic testing of Deputy Bradon Mallory’s USB Drive 22 and computer; and order production of the names of personnel involved in the drone video chain 23 of custody, along with a brief description their involvement. (Id. at 2.) 24 For the following reasons, plaintiff’s motion to compel is GRANTED in PART and 25 DENIED in PART. Plaintiff’s request for sanctions and attorneys’ fees is DENIED. 26 ///// 27 //// 28 1 I. BACKGROUND 2 This civil rights action arises from the death of thirty-seven-year-old William Hennefer, 3 who died following a mental health crisis on the afternoon of January 25, 2021. (ECF No. 23.) 4 Plaintiff alleges that Mr. Hennefer’s death was due to defendant Yuba County Sheriff 5 Department’s failure to provide timely medical assistance and failure to train its officers. (Id.) 6 The instant discovery dispute arose after defendant failed to produce complete drone 7 video files during written discovery. Defendant produced eight drone video files, labeled 8 “COUNTY 385-392.” (ECF No. 36-1 at 16.) Of the eight videos, four video files (385, 387, 389, 9 and 391) were intended to be high-resolution video files with date and time stamps. (See id.) 10 The remaining four video files (386, 388, 390, and 392) were intended to be lower-resolution 11 versions without time stamps. (See id.) However, due to an error, video files 387, 389, and 391 12 were exact copies of video file 385, when in fact video files 387, 389, and 391 should have shown 13 different video content. (Id.) The correct files were subsequently produced as amended 14 discovery on August 31, 2023. (Id.) 15 The parties appeared for an informal telephonic conference before the undersigned on 16 September 8, 2023, to remedy the effects of the late produced video files. (ECF No. 29.) At that 17 time, the court ordered the second deposition of Deputy Mallory with costs paid by defendant. 18 (ECF No. 30.) The court denied plaintiff’s request to order a forensic evaluation, chain of 19 custody log, and reopening the remaining depositions. (Id.) 20 Plaintiff filed the instant motion on December 8, 2023, along with joint statement from 21 both parties, and set the matter for a December 19, 2023 hearing. (ECF No. 36.) On its own 22 motion, the court vacated the hearing and ordered the parties to submit the videos at issue to the 23 court. (ECF No. 37.) 24 Plaintiff submitted a USB drive containing two folders, “Defendants second video 25 production” and “Mallory USB Drive Videos.” The folder titled “Defendants second video 26 production” contains the videos that defendant erroneously produced in written discovery. 27 The folder entitled “Mallory USB Drive Videos” contains four distinct high resolution 28 drone videos and their lower resolution counterparts; i.e., the video files which should have been 1 produced during discovery but were not produced until after Deputy Mallory’s deposition.1 Upon 2 review, the court confirmed that video file 391 has a wider field of view than its lower resolution 3 counterpart (video 392) and shows that at least two YCSD officers approached the truck and 4 found Mr. Hennefer deceased. 5 II. LEGAL STANDARD 6 Under Federal Rule of Civil Procedure 26(b)(1), parties 7 May obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs 8 of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to 9 relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense 10 of the proposed discovery outweighs its likely benefit. 11 Fed. R. Civ. P. 26(b)(1). 12 A motion to compel is appropriate when a party fails to produce relevant, non-privileged 13 documents requested pursuant to Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv), (a)(4). The party 14 seeking to compel discovery has the burden of establishing that its request satisfies the relevancy 15 requirements of Rule 26(b)(1). Best Buy Stores, L.P. v. Manteca Lifestyle Ctr., LLC, No. 2:10- 16

, at *5 (E.D. Cal. June 14, 2011). Thereafter, the party opposing discovery has 17 the burden of showing the discovery should be prohibited, and the burden of clarifying, 18 explaining or supporting its objections.” Bryant v. Ochoa,

at *1 (S.D. Cal. 19 May 14, 2009) (citations omitted). 20 III. DISCUSSION 21 Plaintiff asks this court to order the retaking, in part, of the depositions of Deputy Tyler 22 Eck, Deputy Valentino Aguirre, Deputy Teng Saecheo, and Detective Natalie Mullins, with costs 23 and fees paid by defendant; forensic testing of Deputy Mallory’s USB Drive and computer; and 24 order production of the names of personnel involved in the drone video chain of custody, along 25 with a brief description their involvement. (ECF No. 36 at 2.) The court addresses each of these 26 1 Upon review, the court confirmed that video files 387 and 389 in “Defendants second video 27 production” are copies of video file 385. The court was unable to view video file 391 in “Defendant’s second video production” because of a software compatibility issue; however, 28 defendant does not dispute that file 391 was a duplicate of 385. (ECF No. 36-1 at 16.) 1 requests in turn. 2 A. Retaking of Depositions 3 Reopened depositions are disfavored, except in certain circumstances, such as the long 4 passage of time with new evidence or new theories added to the complaint. Ransom v. Herrera, 5

, at *2 (E.D. Cal. Aug. 21, 2018). When determining whether to grant a 6 request to retake a deposition, courts consider 1) whether the discovery is cumulative or 7 duplicative or is readily obtainable from another more convenient source; 2) whether the party 8 seeking the discovery has had ample opportunity to obtain the information; and/or 3) whether the 9 burden or the additional expense outweigh the benefit sought.

See also Fed. R. Civ. P. 26 10 (b)(2). 11 Here, plaintiff requests the retaking of the depositions of Deputy Tyler Eck, Deputy 12 Valentino Aguirre, Deputy Teng Saecheo, and Detective Natalie Mullins.2 (ECF No. 36-1 at 5.) 13 Plaintiff argues that the complete set of date-stamped videos will help clarify the sequencing of 14 events by allowing plaintiff to correlate the statements recorded in the incident report with the 15 two complete drone videos with date/timestamps. (Id.) In addition, and as confirmed by the 16 court, video 391 has a wider field of view and shows two, or possibly three, of the YCSD officers 17 that approached the truck and found Mr. Hennefer deceased. (Id. at 5-6.) 18 Plaintiff’s statement does not articulate why the court should grant the retaking of the 19 depositions in light of discovery limitations which this court must consider. (See Fed. R. Civ. P. 20 26(b)(2), requiring courts to consider whether the discovery is cumulative or duplicative or is 21 readily obtainable from another more convenient source; whether the party seeking the discovery 22 has had ample opportunity to obtain the information; and/or whether the burden or the additional 23 expense outweigh the benefit sought.) However, the court agrees that second depositions are 24 warranted, as the production of higher-resolution, time-stamped videos, at least one of which has 25 a wider field of view, would better enable plaintiff to obtain accurate testimony related to timing 26 2 While plaintiff’s motion does not indicate when the initial depositions of Deputies Eck, Aguirre, 27 Saecheo, and Detective Mullins occurred, the court infers from the parties’ joint statement that the depositions of Deputies Eck, Aguirre, Saecheo, and Detective Mullins occurred before 28 defendant provided plaintiff with the correct video files. 1 and sequencing of the circumstances surrounding Mr. Hennefer’s death. 2 Accordingly, plaintiff’s request to retake, in part, the depositions of Deputies Eck, 3 Aguirre, Saecheo, and Detective Mullins is GRANTED. Plaintiff shall only retake those parts of 4 the depositions that were adversely impacted by the unavailability of the complete set of video 5 files from Deputy Mallory.3 6 Lastly, to ensure that the expense of retaking the depositions does not outweigh the benefit 7 sought, the court declines to order defendants to pay costs and attorneys’ fees. If plaintiff chooses 8 to retake any of the depositions, it will be at his own expense (and defendants are responsible for 9 their own attorneys’ fees, copy of deposition transcripts, etc.). 10 Plaintiff asks this court to order production of all video, including infrared video. (ECF 11 No. 36-1 at 13.) But, as defendant has already represented that they have produced all video files, 12 there is nothing further for the court to compel. (See ECF No. 36-1 at 19, 20.) Plaintiff’s request 13 is therefore DENIED. 14 B. Forensic Testing 15 Plaintiff asks this court to order production of Deputy Mallory’s USB Drive and computer 16 for forensic testing. (ECF No. 36-1 at 13.) District courts have consistently held that “mere 17 suspicion or speculation” that an opposing party may be withholding discoverable information is 18 insufficient to support a forensic inspection of an opposing party’s computer. Juul Labs, Inc. v. 19 Chou,

, at *2 (C.D. Cal. Apr. 19, 2022) (collecting cases). Here, plaintiff’s 20 assertions that “[t]here is almost certainly a much longer infrared video file that could be a crucial 21 piece of forensic evidence” and that forensic analysis “is the only means of verifying” 22 completeness of production are speculative. (ECF No. 36-1 at 13.) Accordingly, plaintiff’s 23 request for a court order compelling a forensic inspection of Deputy Mallory’s USB and 24 computer is DENIED. 25 //// 26

27 3 Plaintiff seeks to depose the deputies regarding the infrared video. However, as defendant argues and plaintiff concedes, the infrared video was contained in the video files produced to 28 plaintiff prior to the Mallory Deposition. (ECF No. 36-2 at 3.) 1 C. Chain of Custody log 2 Plaintiff asks this court to order defendant to produce the names of any Yuba County 3 Sheriff’s Department personnel involved in the drone video chain of custody, along with a brief 4 description of their contact with the drone video. (ECF No. 36-1 at 14.) Defendant has not 5 addressed this request in the joint statement. Accordingly, plaintiff’s request is GRANTED. 6 Defendant shall provide the names of any Yuba County Sheriff’s Department personnel involved 7 in the drone video chain of custody, along with a brief description of their contact with the drone 8 video within fourteen days of this order. 9 D. Attorney’s Fees and Sanctions 10 If a motion to compel is granted in part and denied in part, the court may apportion the 11 reasonable expenses for the motion. Fed. R. Civ. P. 37. The court denies plaintiff’s request for 12 attorneys’ fees.4 (ECF No. 36-1 at 14.) Further, though plaintiff’s counsel seeks an award of 13 26.1 hours “investigating the drone video,” the court is not persuaded that this excessive 14 expenditure of time was reasonable. Accordingly, plaintiff’s request for attorneys’ fees and 15 sanctions is DENIED. 16 ORDER 17 Accordingly, the court HEREBY ORDERS that: 18 1. Plaintiff’s Motion to Compel and Request for Attorneys’ Fees and Sanctions, 19 ECF No. 36, is GRANTED in PART and DENIED in PART. 20 2. Plaintiff’s request to retake, in part, the depositions of Deputies Eck, Aguirre, 21 Saecheo, and Detective Mullins is GRANTED. The ordinary costs of the 22 depositions shall be borne by plaintiff. 23 3. Plaintiff’s request for attorneys’ fees and sanctions is DENIED; 24 4. Plaintiff’s request for an order compelling forensic inspection of Deputy 25 Mallory’s USB and computer is DENIED; 26 4 Plaintiff requests sanctions and fees under Federal Rule of Civil Procedure 37(a)(5) and 37(e). 27 (See ECF No. 36-1 at 12.) Rule 37(a) takes effect only when a motion is granted in full, which is not the case here. Further, plaintiff’s bare assertion that “the foregoing law is clear and Plaintiffs 28 are entitled to relief” is insufficient to support sanctions under Rule 37(e). 1 5. Plaintiff's request for an order compelling production of the names of any 2 Yuba County Sheriff's Department personnel involved in the drone video 3 chain of custody, along with a brief description of their contact with the drone 4 video, is GRANTED. Defendant shall provide the requested information 5 within fourteen days of this order. 6 || Dated: January 11, 2024 Foci) Aharon 8 KENDALL J. NE RS, henn.0389 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28