Johnson v. City of San Jose

Background

Kyle Johnson sued the City of San Jose and Officer James Adgar. He alleges that Officer Adgar injured him by firing a projectile at him during the George Floyd protests in San Jose in late May 2020. The complaint asserts claims for battery, negligence, violations of the First and Fourth Amendments, and violation of the Bane Act. Johnson also asserts claims against the City under Monell, a legal theory that can hold a municipality responsible for an unconstitutional policy, custom, or failure to train.

Johnson sought to take a deposition under Federal Rule of Civil Procedure 30(b)(6). That rule allows a party to question an organization through one or more representatives prepared to testify about specified subjects. The parties disagreed about whether the City had to prepare a representative to testify about Topics 1, 4–6, and 10–12. The City had agreed to provide testimony on other topics but did not provide testimony on April 3, 2023.

Legal standard

A Rule 30(b)(6) deposition notice must describe the subjects for examination with reasonable particularity. The organization must make a good-faith effort to prepare its representative to answer fully and without evasion, including by using information reasonably available from documents, former employees, or other sources. Discovery must concern nonprivileged information relevant to a claim or defense and proportional to the needs of the case.

Court’s analysis

Topic 1. The court understood Johnson to have narrowed Topic 1 to the process of compiling, drafting, revising, and approving the City’s After Action Report concerning the protests. The topic did not seek testimony about the report’s contents or a separate general offense report. As narrowed, the court found that the topic would not impose an undue burden and was not likely to require discussion of material protected by the deliberative-process privilege.

Topics 4–6. Topic 4 concerned training provided to sworn San Jose Police Department members about the City’s use-of-force policy or practice in effect during the protests, including force used against people engaged in expressive activities. The City argued that the topic went beyond training on crowd control and projectile-impact weapons. The court rejected that objection, explaining that Johnson’s failure-to-train claim was not limited to those subjects and could include training on less-lethal weapons generally and how the department handled protests. The court also found that broader use-of-force training evidence could support Johnson’s claim that the City maintained an unconstitutional custom or practice.

Topics 5 and 6 concerned five documents relating to use-of-force training. The court rejected the City’s objections that the documents concerned policies not in effect during the protests or uses of force other than projectile-impact weapons. The court reasoned that earlier and later versions of the policy could bear on whether the City knew of or endorsed an unconstitutional policy or practice and whether that policy was longstanding. It found Topics 5 and 6 relevant and proportional.

Topics 10 and 11. These topics concerned investigations into officers’ conduct during the protests and disciplinary actions resulting from that conduct, including discipline involving Officer Yuen. The City argued that preparing a representative to discuss all such investigations and actions would be too broad and burdensome. The court said the parties had not shown how many investigations or disciplinary actions were covered, so it could not assess the burden on the record presented. Because the topics appeared relevant to Johnson’s Monell claims, the court found Topics 10 and 11 relevant and proportional.

Topic 12. This topic concerned supervisory review of use-of-force reports prepared during the protests. Johnson argued that the absence of supervisory review could support his deliberate-indifference claims concerning officer training and compliance with department policy. The City argued that preparing a representative would require gathering information about ten days of reports written by hundreds of officers and reviewed by dozens of sergeants. Johnson did not respond to that burden argument. The court found Topic 12 broader than Topics 10 and 11 and concluded that preparing testimony on its full scope would be unduly burdensome and disproportionate to the likely benefit.

Order

Judge Beth Freeman ordered the City to provide testimony about Topic 1 as narrowed and Topics 4–6, 10, and 11, in addition to the topics on which the parties had previously agreed. The court did not require testimony about Topic 12. It limited the deposition to no more than seven hours total, regardless of how many City representatives testified, and directed the parties to confer about a date that would give the City adequate preparation time. The parties were also required to submit a stipulated request and proposed order seeking a schedule modification to hold the deposition after the close of fact discovery.