1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 RICHARD EDWARD WORTHY, Case No. 20-cv-05558-EMC (TSH)

10 Plaintiff,

DISCOVERY ORDER

11 v. Re: Dkt. No. 26 12 CITY OF BERKELEY, et al., 13 Defendants.

14 15 Plaintiff alleges that on July 11, 2019 he was on his usual walk, at times dancing and 16 playing his silver flute, when an altercation with the police led to his arrest, followed by a 5150 17 hold. He sues the City of Berkeley, its chief of police and three other officers for a variety of 18 federal and state law claims. ECF No. 1. We are here on a discovery dispute concerning some of 19 the City’s requests for production (“RFPs”) and interrogatories (“rogs”) to Plaintiff. The Court 20 will address each discovery request in turn. 21 As an initial matter, in discussing questions of privilege, the parties seem to be under the 22 impression that California law applies. It doesn’t. When a plaintiff alleges federal and state law 23 claims and the evidence at issue relates to both, federal privilege law applies. See Wilcox v. 24 Arpaio, 753 F.3d 872, 876 (9th Cir. 2014). Here, all of the discovery requests at issue relate to 25 causation and damages, so they concern every claim; therefore, the federal law of privilege 26 applies. 27 RFP 8 seeks documents concerning treatment, medical records or bills related to injuries 1 seeking damages for his injuries, Plaintiff has waived his medical privacy objections for these 2 documents. The Court will not repeat this holding for every discovery request discussed below; 3 for all of them, Plaintiff has put the requested information at issue. Note, however, that RFP 8 is 4 expressly limited to injuries “claimed in this lawsuit,” so any records concerning other medical 5 issues are not responsive. 6 RFP 10 seeks documents about any injuries to the same areas of the body that Plaintiff 7 claims in this lawsuit were injured. As of the filing of the Complaint, Plaintiff was 73 years old, 8 so this RFP is overbroad as to time frame. The Court limits the relevant time frame to January 1, 9 2015 to the present. As discussed at the hearing, this RFP concerns any claimed physical injuries 10 to the body, so if Plaintiff does not claim to have suffered any physical injuries, no documents are 11 responsive. 12 RFP 11 asks for documents that discuss any loss of income Plaintiff claims in this lawsuit. 13 Those documents are relevant, and Plaintiff must produce them, if he has any. 14 RFP 19 asks for all documents that discuss any time Plaintiff has been taken into custody 15 for a psychiatric evaluation. This is overbroad as to time frame, but Plaintiff says this only 16 happened twice (in July 2019 and March 2020). The Court agrees that evidence about other 5150 17 holds in the time period near the 5150 hold at issue in this case is relevant to causation for the 18 damages Plaintiff is seeking, especially damages concerning medical and counseling expenses and 19 emotional distress. By seeking those types of damages, Plaintiff has put any other close-in-time 20 5150 holds at issue, and the March 2020 5150 is close in time. 21 Rog 8 asks Plaintiff to describe any mental health condition he already had at the time the 22 incident started. The rog further defines “mental health condition” to mean a diagnosable mental 23 disorder that affects mood, thinking, or behavior, including but not limited to depression, anxiety 24 disorders, schizophrenia, and addictive behaviors. This rog seeks relevant information related to 25 causation and damages. You could argue that it is overbroad as to time if “already had” means 26 any mental health condition he had at any time in his life before the incident, but the Court thinks 27 this rog is asking for any conditions Plaintiff had as of the time the incident began. 1 For the conditions responsive to rog 8, rog 9 then asks for the name, address and phone 2 numbers of all medical providers that treated or counseled him for that condition. This 3 information is relevant, but this rog is overbroad as to time frame. The Court limits the relevant 4 time frame to 2015 to the present. 5 Rog 10 asks for the date of every voluntary psychiatric evaluation Plaintiff has ever had. 6 This information is relevant, but the time frame is overbroad. The Court limits the relevant time 7 frame to 2015 to the present. 8 Rog 11 asks Plaintiff to identify all mental health care providers from whom he voluntarily 9 received mental health therapy or counseling since January 1, 2015, and rog 12 asks him to state 10 the approximate time-period and frequency of the therapy or counseling. This is relevant 11 information, and Plaintiff may not withhold it. 12 Rog 18 asks for each injury that Plaintiff sustained as a result of the incident, what 13 medications he has taken as treatment and for what time period. Plaintiff’s existing response is 14 evasive, and he must provide this information. 15 Rog 19 asks Plaintiff to describe any health insurance coverage he used in obtaining 16 treatment for each injury for which he is seeking damages in this lawsuit, including the name of 17 the entity and his member number. This information is relevant and discoverable and necessary 18 for the service of subpoenas. 19 Rog 21 asks Plaintiff to describe each instance in which it appeared that the incident 20 damaged his reputation. Since Plaintiff does seek damages for reputational injury, he must answer 21 this rog. 22 The Court accordingly grants the City’s motion to compel and orders Plaintiff to provide 23 the requested documents and information, except as modified above, within 14 days. 24 As discussed at the hearing, Plaintiff’s discovery obligation with respect to RFPs is to 25 produce documents within his possession, custody or control (see Fed. R. Civ. Proc. 34(a)(1)) and 26 with respect to rogs, to provide information known or reasonably available to him. Fourteen days 27 is a sufficient amount of time to do this. If Plaintiff can obtain documents or information only by 1 and that information is not reasonably available to him. 2 IT IS SO ORDERED. 3 4 || Dated: February 23, 2021 5 TAA. |p

THOMAS S. HIXSON

6 United States Magistrate Judge 7 8 9 10 11 12

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