Case 2:11-cv-01041-RSM Document 44

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THE HONORABLE JUDGE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) ) Plaintiff, ) ) vs. ) ) CITY OF SEATTLE, a municipal corporation; ) SHANDY COBANE, an individual; MARY L. ) WOOLLUM, an individual, ) ) Defendants. ) ) MARTIN MONETTI, JR.,

No.

2:11-CV-01041-RSM

DEFENDANTS REPLY IN SUPPORT OF THEIR MOTION TO BIFURCATE DISCOVERY AND TRIAL PURSUANT TO FED. R. CIV. P. 42(b)

ARGUMENT

In brief reply to plaintiffs response, defendants address three points, two of which are largely undisputed: 1) Defendants agree with plaintiffs proposal that the ruling on the motion to bifurcate be deferred until argument and resolution of the defendants summary judgment motion.1 Plaintiffs Response to Defendants Motion to Bifurcate (Response) at 2. 2) Accordingly, if the motion is deferred, defendants modify and limit their request for a stay of Monell discovery
1

Defendants deny that they violated CR 7(e)(2), as their motion was combined with their response to plaintiffs motion to compel. As the two motions are inextricably intertwined, defendants chose to draft the two together for the ease of the Court. As such, defendants properly had 12 pages for each brief and only used 12 for their combined effort. Despite his complaints, plaintiff proposes deferring the motion to bifurcate as a solution.

REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL (C11-1041 RSM) - 1

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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only until the resolution of their motion for summary judgment. 3) Should Monell discovery be required, that discovery should be limited to the production of use of force files and complaints to the Office of Professional Accountability regarding biased policing and language. a. Defendants agree that 1) the motion to bifurcate should be stayed until resolution of their motion for summary judgment, and therefore, 2) their request for a stay of Monell discovery is limited only until the resolution of summary judgment. Defendants have met their burden to support their motion for bifurcation of the underlying claims from the Monell claims. If plaintiff is able to prove his allegations of constitutional

violations at trial, the remaining issues to be tried under Monell will be 1) whether the City had a custom, policy, or practice that amounted to deliberate indifference to plaintiffs constitutional rights and 2) that was the motivating force behind the constitutional violations. Defendants

recognize that if both the determination of bifurcation and Monell discovery is stayed until resolution of summary judgment, the outcome of the motion for summary judgment will control whether Monell discovery is appropriate. As such, defendants now limit their request for bifurcation to trial and only request that Monell discovery be stayed until resolution of the motion for summary judgment. Bifurcating the trial will preserve all defendants interest in an untainted presentation of the evidence relevant to the underlying constitutional issues without confusing those issues with the data-intensive and otherwise irrelevant Monell evidence. Both issues could be heard by the same jury and the Monell portion of the trial could proceed immediately after that of the underlying claims. This revision to defendants request should address the majority of plaintiffs concerns about bifurcation2.

Plaintiff argues the merits of his underlying claims, but a response to those arguments are best suited for the reply to plaintiffs response to summary judgment.

REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL (C11-1041 RSM) - 2

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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b. If necessary, Monell discovery should be limited. However, despite their willingness to consider Monell discovery should it be necessary after resolution of the pending motion for summary judgment, defendants maintain that plaintiffs requests remain hugely overbroad and burdensome as set forth in defendants Response To Plaintiffs Motion To Compel and Cross Motion To Bifurcate (Docket No. 21 at 8-12). Plaintiff now contends that the December 16, 2012, Report of the Department of Justice, is admissible under the hearsay exception set forth in Fed. R. E. 803(8) and forms the basis of plaintiffs claims and that any effort to exclude the report will be fruitless. Response at 9-10. Defendants submit that they should not be forced to collaterally defend against the DOJs inadmissible hearsay opinion in this litigation. There are many negative factors that weigh against the reliability and trustworthiness of the DOJ report and therefore Fed. R. E. 803(8) does not apply. While this argument will likely be fleshed out if circumstances require, some of the highlights include: 1) Analysis under 14141 is under a reasonable cause standard, not the preponderance of the evidence standard under 1983; 2) the only articulated support for DOJs Report comes from the subjective opinions of two retired law enforcement officials retained by DOJ as consultants (plaintiff has not even identified any expert to opine on the constitutionality of the hundreds of use of force files he seeks); 3) use of force must be analyzed under a totality of the circumstances analysis, not by a subjective review solely of use of force reports, which is the methodology used by the DOJ3; 4) the DOJ report fails to provide even the most basis information concerning its analysis such quantities on the x or y axes for charts, n values or sample sizes, confidence intervals, margins of error; 5) DOJ has The United States Supreme Court specifically recognized that [t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. Graham v. Connor, 490 U.S. 386, 394 (1989)(citing Bell v. Wolfish, 441 U.S. 520 (1979)). As such, an analysis of force requires careful attention to the facts and circumstances of each particular case[.] Id.
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REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL (C11-1041 RSM) - 3

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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systematically refused to provide the underlying data or its analysis for any systemic review; 6) and the City will be able to show significant quantitative and methodological errors in the report even without the underlying data. Additionally, while plaintiff seems to believe the DOJ report is somehow about his case, the DOJ specifically stated [o]ur investigation was not prompted by any one particular incident. Nor did we focus on, or try to resolve the facts of, any of these high-profile events. Docket 36 at 3. Therefore, plaintiffs reliance on the DOJ report as the basis of their Monell claim is seriously misplaced. Nonetheless, defendants have examined the proposed (albeit flawed) methodologies of plaintiffs experts and have offered to produce the approximately 1200 use of force reports relied on by the DOJ for their report, as well as the last three years (or as many as are available) of complaints to the Office of Professional Accountability about racial policing or use of racial language4. If Monell discovery is permitted, defendants submit that it should be limited to this more reasonable plan, rather than requiring production of more than 165,000 documents and over 600GB of electronic media, that will likely require over a year to properly redact5 and prepare for discovery. II. CONCLUSION

Based on the arguments set forth above, Defendants respectfully request that the Court bifurcate the Monell claims from the claims against the individual police officers with respect to trial, stay Monell discovery until the resolution of the motion for summary judgment, and should Monell discovery be needed, that it be reasonably limited.

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While defendants would be willing to produce such information, they do not concede that it would be admissible or even relevant. 5 Although there is a confidentiality agreement in this matter, that agreement does not cover privileged documents, issues of third party notifications, privacy interests in the personnel files of SPD personnel not involved in this matter, and a variety of non-conviction data protected by statute.

REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL (C11-1041 RSM) - 4

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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DATED this 18th day of May, 2012. PETER S. HOLMES Seattle City Attorney By: s/Brian G. Maxey Brian G. Maxey, WSBA #33279 Dominique L. Jinhong, WSBA #28293 Seattle City Attorneys Office 600 4th Avenue, 4th floor P.O. Box 94769 Seattle, WA 98124-4769 Phone Dominique Jinhong: 206-684-8251 Phone Brian Maxey: 206-733-9001 FAX: 206-684-8284 Email: dominique.jinhong@seattle.gov brian.maxey@seattle.gov Attorneys for Defendants City of Seattle, Det. Cobane and Ofc. Woolum

REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL (C11-1041 RSM) - 5

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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CERTIFICATE OF SERVICE I certify that on the 18th day of May, 2012, I electronically filed this document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following attorneys of record: Janet L. Rice, rice@sgb-law.com Maria Lorena Gonzalez, gonzalez@sgb-law.com Martin S. Garfinkel, garfinkel@sgb-law.com Brian G. Maxey, brian.maxey@seattle.gov Dominique L. Jinhong, dominique.jinhong@seattle.gov DATED this 18th day of May, 2012, at Seattle, King County, Washington.

By:

s/Brian G. Maxey Brian G. Maxey, WSBA #33279

REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL (C11-1041 RSM) - 6

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200