Opinion
NO. 5:04-cv-3946 JW (RS).
July 25, 2005
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL PALM PRINTS AND FINGER PRINTS
I. INTRODUCTION
Plaintiffs Joseph Padgett and Darla Padgett ("Padgetts"), former residents of the City of Monte Sereno (the "City"), initiated this suit claiming, among other things, violation of their civil rights pursuant to 42 U.S.C. § 1983. The suit is essentially based upon allegations that the Padgetts were singled out for discriminatory treatment in the process of seeking a building permit for their home, and that City officials sent them a threatening letter demanding that they leave town.
The Padgetts now seek to compel City officials to submit fingerprints and palm prints, pursuant to Fed.R.Civ.P. 35, based on their contention that such evidence is necessary in order to identify the author of the threatening letter, and to determine whether City officials had knowledge of the letter. The motion was fully briefed and heard by the Court on July 13, 2005. Based on all papers filed to date, as well as on the oral argument of counsel, the Court grants in part and denies in part the motion, for the reasons set forth below.
II. BACKGROUND
Mrs. Padgett purchased property located at 17965 Saratoga-Los Gatos Road ("Padgett property") within the City in 1992. In February 1999, the Padgetts applied for a Site Development Permit so that they could build their "dreamhome" on the property. (Amended Complaint at p. 3, line 9.) The City scheduled a hearing for March 3, 1999. In the interim, the City's then Mayor, Jack Lucas, "demanded" that the Padgetts meet with their neighbors, the Bruns, to discuss the Bruns' concerns that the building plans would interfere with their privacy. The Padgetts and the Bruns agreed that the existing fence between the two properties, which was over six feet tall and approved by the City in 1992 (the "Brun fence"), would be adequate to maintain privacy. On March 3, 1999, the City approved the Padgetts' Site Development Permit and the Padgetts proceeded with construction.During construction, the Padgetts removed the Brun fence, and the Bruns installed a new bamboo fence that exceeded six feet in height. However, a dispute arose over the property line, the bamboo fence, and the removal of a tree. A separate dispute also arose between the Padgetts and their other neighbors, the Hunters, who claimed that they had an unrecorded easement through the Padgett property and objected to the relocation of utility lines servicing the Hunters' property. Together the Bruns and Hunters filed suit against the Padgetts in state court, which led to the imposition of an injunction against the Padgetts that prevented them from completing their construction work.
After those disputes arose, the City and the City Manager, Defendant Brian Loventhal ("Loventhal"), are alleged to have entered into a common plan to "persecute and harass" the Padgetts into conceding to the Bruns' demands. In December 1999, the City's building inspector sided with the Hunters and allegedly told Mr. Padgett, "Your project is over. I am red tagging your project."(Id. at p. 6, line 2.) The City continued to side with the Hunters, and conditioned further City inspections under lawfully issued permits upon the Padgetts' concessions to the Hunters' demands.
In May 2001, the Padgetts and the new owners of the Brun property erected a new fence between their properties that was approximately the same size and height as the previous fence. (Loventhal Decl., p. 2, line 15, see Amended Compl., p. 4, line 22.) The City, however, insisted on enforcing an ordinance prohibiting fences over six feet tall. (Amended Compl., p. 8, line 12.)
In July 2001, Mrs. Padgett met with Mr. Loventhal, who assured her that as long he received documentation confirming that the state court injunction remained in place, the expiration of the Site Development Permit would not cause any problems. (Id. at line 19.) Mr. Padgett delivered copies of the injunction to Mr. Loventhal. Nevertheless, in October 2001, the Padgetts received notice that the Site Development Permit had expired, without ever having received the City's customary 30-day warning prior to expiration. (Id. at p. 9, line 7.) Mr. Loventhal told Mrs. Padgett he never received a copy of the injunction, and further that the Padgetts would have to pay approximately $1,200 to reinstate their permit. (Id. at line 18.) During the process of dealing with the City, the Padgetts appeared and spoke at numerous City Council meetings, distributed notices and fliers to other residents of the City, wrote numerous letters, and generally communicated with the public about what they perceived as unlawful and discriminatory actions. (Id. at line 17.)
In February 2003, the City filed a nuisance action against the Padgetts, alleging that they had an expired permit, failed to replace a tree, and maintained a fence over six feet in height. (Powell Decl., p. 1, line 24.) That suit is still pending. In December 2003, the City filed a criminal suit against Mrs. Padgett for violation of the City's fence ordinance. (Id. at p. 2, line 4; Amended Compl., p. 13, line 6.) In February 2004, defendants obtained a criminal search warrant, and entered the Padgetts' property, without notice, to inspect their fence. (Amended Compl., p. 14, line 1.)
In March 2004, defendants obtained a second search warrant as part of the civil case, to inspect the interior of the Padgetts' house. (Id. at line 9.) Later that month, the Padgetts attended a City Council meeting to complain that defendant Loventhal was singling them out for discriminatory treatment. (Id. at line 18.) A few days after the meeting, on March 19, 2004, the Padgetts received an offensive letter ("threatening letter") demanding that they leave town and threatening to expose Mr. Padgett's ten-year old misdemeanor conviction. (Padgett Decl., Exh. B.) An article ("Padgett article") from the San Jose Mercury News dated February 3, 1994 was included in the threatening letter. (Id. at p. 3.) In June 2004, believing City officials to have authored the threatening letter, the Padgetts filed this suit against Loventhal, the City, and other City officials.
After receiving the threatening letter, Mr. Padgett reported receipt of the threatening letter to the Los Gatos/Monte Sereno Police Department. (Padgett Decl., p. 4, line 6.) The threatening letter and envelope were submitted to the County of Santa Clara Crime Laboratory and the San Jose Police Department Central Identification Unit for analysis. The County Crime Lab processed the threatening letter and envelope and prepared a compact disc with 47 images lifted from the documents. (Reedy Decl., Exh. A, p. 2.) After analysis, the San Jose Police Department Central Identification Unit issued a report stating that it had not received palm prints and could not complete its examination until it had received Mr. Loventhal's palm prints. (Reedy Decl., Exh. B.) Based on the report, the Los Gatos/Monte Sereno Police Department subsequently claimed that the analysis did not match Mr. Loventhal's prints. (Reedy Supp. Decl., Exh. C, p. 2.)
Believing that Mr. Loventhal's palm prints were never provided to the Central Identification Unit, the Padgetts submitted the threatening letter along with the CD from the County Crime Lab to a private laboratory, Forensics Analytical. (Kaminski Decl., p. 2, lines 15-19.) They also submitted a water bottle that was allegedly used by Mr. Loventhal as well as a set of original letters and envelopes from Mr. Loventhal, including a letter dated January 30, 2004. (Id. at p. 2; see Padgett Decl., Exh. C.) Forensic Analytical identified the prints found by the County Crime Lab along with eight additional finger and palm prints. (Kaminski Decl., Exh. B, p. 1.) Forensic Analytical also concluded that the prints found on the threatening letter match a print found on the January 30, 2004 letter. (Kaminski Decl., Exh. B, p. 3.) When compared to the Padgetts' prints, they were eliminated as a source of the prints. (Id.) Despite repeated requests, defendants refused to provide finger or palm prints voluntarily. (Reedy Decl., Exh. G, H.) Forensic Analytical also was not able to find a match between the threatening letter and the water bottle allegedly used by Mr. Loventhal. (Kaminski Decl., Exh. B, p. 3.)
In addition to seeking forensic evidence, the Padgetts also attempted to determine the source of the Padgett article. They discovered that the archives for the San Jose Mercury News were controlled by News Bank, Inc. (Padgett Decl., p. 5, line 9.) After the superior court issued a subpoena, the Padgetts were able to ascertain that Mr. Loventhal had downloaded the Padgett article twice in 2003. (Padgett Decl., Exh. F.)
The Padgetts contend that defendants Brian Loventhal, A. Curtis Wright, Erin Brodsky, Barbara Nesbet and David Baxter, as well as non-parties Howard Bell, Rosemary Carrera, Andrea Chelemengos, Lisa Rice, Eileen Finn-Kopp, Sue L'Heureux, Gordon Siebert, and Michelle Wu should be compelled to provide fingerprints because their request meets the requirements of Fed.R.Civ.P. 35. The Padgetts contend that the threatening letter's authorship is a central matter "in controversy" and that "good cause" exists to compel defendants to provide their fingerprints. In response, defendants contend that non-party Lisa Rice's recent confession precludes the Padgetts from meeting the "in controversy" and "good cause" requirements of Rule 35. In addition, defendants contend that the Court may not compel non-parties to submit to physical examinations under Rule 35.
Brian Loventhal is the City Manager. A. Curtis Wright, Erin Brodsky, Barbara Nesbet and David Baxter are members of the City Council. Howard Bell is the City's Building Official. Rosemary Carrera is the City's Postal Clerk. Andrea Chelemengos is the City Clerk and Assistant City Planner. Eileen Finn-Kopp is an administrative clerk. Sue L'Heureux is the City's Finance Officer/Deputy City Clerk. Lisa Rice was, until recently, an administrative clerk. Gordon Siebert and Michelle Wu are contract engineers for the City. (Loventhal Decl., p. 3, line 23.)
III. STANDARDS
Discovery requests for physical or mental examinations are governed by Rule 35 of the Federal Rules of Civil Procedure. The Rule in relevant part states that
when the mental or physical condition of a party or a person in the custody or under the legal control of a party, is incontroversy, the court may . . . order a party to submit to a physical or mental examination by a suitably licenced or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown.
Rule 35 requires the trial judge analyze with particularity whether the moving party has adequately met the Rule's requirements of "incontroversy" and "good cause." Schlagenhauf v. Holder, 379 U.S. 104, 118-119 (1964).
Discovery requests for documents and tangible things are governed by Rule 34 of the Federal Rules of Civil Procedure. The rule in relevant part states that
Any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents(including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of and which are in the possession, custody or control of the party upon whom the request is served.
Fed.R.Civ.P. 34(c) provides that a court may compel "a person not a party to the action . . . to produce documents and things or to submit to an inspection as provided in Rule 45."
IV. DISCUSSION
A. Defendants Are to Submit Fingerprints and Palm Prints Pursuant to Rule 35
1. Defendants' Fingerprints Are "In Controversy"
Rule 35(a) requires that the "mental or physical condition of a party or a person in the custody or under the legal control of a party . . . [be] in controversy . . . [before] the court may . . . order a party to submit to a physical or mental examination." Fed.R.Civ.P. 35(a). The "incontroversy" requirement stipulates that the examination must be closely related to the specific incident or litigation. See Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525, 531 (M.D. Fla. 1988).
The Court finds the facts in this case analogous to those presented in Harris v. Athol-Royalston Regional School District Committee, 206 F.R.D. 31, 33 (D. Mass. 2002). In Harris, plaintiff alleged that his employers had delivered an anonymous packet of sensitive documents to a columnist of the local newspaper. Id. at 31. Attempting to link his employer and several coworkers with the delivery, plaintiff sought to compel defendants to produce fingerprints. Id. at 32. In partially granting the motion, the court in Harris found that the request for fingerprints adequately satisfied the "in controversy" requirement because the discovery sought was directly linked to the claim for relief. See id. at 33.
Similarly, this case deals with the anonymous delivery of a threatening letter. As in Harris, authorship of the anonymous letter goes to the heart of at least one of the Padgetts' claims for relief. Determination of the authorship of the threatening letter is necessary to find the defendants liable for the delivery of the letter despite the confession by Ms. Rice. Therefore, the "in controversy" requirement appears to be met in this instance.
Although defendants contend that the confession by Lisa Rice renders the authorship of the threatening letter no longer a matter "in controversy," the Court is reluctant to foreclose discovery related to the letter's authorship solely on the basis of Ms. Rice's confession. The Court cannot ignore the Padgetts' evidence that links the threatening letter to Mr. Loventhal and members of the City Council, indicating the existence of a material issue of fact concerning authorship of the threatening letter despite the confession by Ms. Rice. For these reasons, the Court finds that defendants' fingerprints and palm prints remain "in controversy" within the meaning of Rule 35.
2. "Good Cause" Exists To Compel Discovery From Defendants
Rule 35 requires that the moving party show "good cause" for their request for physical examination. Fed.R.Civ.P. 35(a). The explicit requirement of "good cause" indicates that a greater showing of need is required beyond mere relevancy. "The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b)." Schlagenhauf, 379 U.S. at 118 (quoting Guilford Nat. Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921, 924 (4th Cir. 1962)). This burden is not met by "mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require[s] an affirmative showing by the movant that . . . good cause exists for ordering each particular examination." Id.
With respect to defendant Loventhal, the Court finds that the Padgetts have satisfied their burden of showing "good cause" to request the production of fingerprints and palm prints. Based on the analysis by Forensic Analytical, it is "at least plausible" that whoever wrote the threatening letter may have been the same person who signed January 30, 2004 letter from defendant Loventhal. Harris, at 206 F.R.D. at 33. The Padgetts have also provided further evidence that the Padgett article originated as a download from defendant Loventhal's computer. (See Padgett Decl., Exh. F.) Additionally, the Padgetts have argued that they cannot definitively determine the identity of the author of the threatening letter without fingerprint information. The ability of the movant to obtain the desired information by other means is also relevant to a showing of good cause. Schlagenhauf, 379 U.S. at 114.
With respect to the fingerprint requests for the remaining defendants, the Court finds that the Padgetts have also satisfied their burden of showing "good cause." The Padgetts have provided evidence that members of the City Council were in possession of copies of the newspaper article. See Reedy Decl., Exh. J, p. 2. Defendant Loventhal admitted to passing copies of the Padgett article to members of the City Council. Id. In addition, the declaration by Ron Schindler makes it "at least plausible" that whoever wrote the threatening letter may have been a member of the City Council. Schindler Decl., p. 3, line 20. Although the Padgetts' showing of good cause may not be as strong for the City Council members as it is for defendant Loventhal, the Court is satisfied that the Padgetts have made a reasonable showing consistent with the standard set forth in Schlagenhauf. 379 U.S. at 118. Therefore, the Padgetts' motion to compel is granted with respect to the named defendants.
B. Non-Parties Will Not Be Compelled To Submit Fingerprints And Palm Prints
1. Non-Parties May Be Compelled To Submit Fingerprints Under Rule 34
Traditionally under Rule 35, physical examinations may only be requested of parties in the litigation or persons in the parties' "custody or legal control." Fed.R.Civ.P. 35(a). The language "custody or legal control" was only intended to extend Rule 35 to minors whose guardians are parties to an action. See Committee Notes on Amendments to Federal Rules of Civil Procedure (1970);Lewis v. Herrman's Excavating, Inc., 200 F.R.D. 657, 661 (D. Kan. 2001). The Committee Notes also make it clear that "custody or legal control" was not intended to encompass employees of a corporation or government entity who may be party to an action. They observe that "[t]he amendment makes no reference to employees of a party. Provisions relating to employees in the State statutes and rules . . . appear to have been virtually unused." Id. Subsequent proposals to expand the scope of Rule 35 to include employees of corporations have thus far been rejected. Lewis, 200 F.R.D. at 661 (citations omitted). Hence, the Court finds that it has no authority to compel any of the non-parties in this action to submit to physical examinations under Rule 35, regardless of their employment status with the City.,
The Padgetts contend that the City, as an employer, has "legal control" over the non-party City officials. However, Lisa Rice's employment with the City has been terminated since the submission of her alleged confession. Hence, even if the Padgetts' interpretation of Rule 35 were correct, Ms. Rice's fingerprints would still be unavailable since she is no longer a city employee.
The Padgetts contend that non-parties may be compelled under the Rule 35 because 1991 amendments to Rule 35 render pre-1991 case law irrelevant. The Padgetts' contention centers on the fact that, in 1991, Rule 35 was revised to permit physical or mental examinations by "any suitably licensed or certified professional" rather than simply by a "physician." See Committee Notes on Amendments to Federal Rules of Civil Procedure (1991). The Padgetts argue that all decisions prior to 1991 were made with the notion that physical examinations were conducted by physicians and, thus, are not applicable to examinations by forensics technicians. The Court does not find this argument persuasive. There is no mention in the committee notes that the rule change was intended to broaden the scope of Rule 35. Instead, the committee notes indicate that the sole purpose for the rule change was to provide the discovery judge with greater discretion to evaluate the credentials of the examiner with respect to the type of examination requested. Id.
However, there is convincing precedent that the Court has the authority to compel fingerprints and palm prints from non-parties under Rule 34. In U.S. v. Euge, 444 U.S. 707, 711 (1980), the Supreme Court held that "the duty to appear and give testimony . . . has traditionally encompassed a duty to provide some forms of non-testimonial, physical evidence." Id. at 711; Holt v. U.S., 218 U.S. 245, 252 (1910). "Traditionally witnesses could be compelled . . . to submit to `fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.'" Id. at 713 (quotingSchmerber v. California, 384 U.S. 757, 764 (1966)) In Gilbert v. California, 388 U.S. 263, 266 (1967), the Court held that handwriting was "like the body itself" to be an "identifying physical characteristic," subject to production. See U.S. v. Dionisio, 410 U.S. 1, 93 (1973) (confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury).
When faced with similar facts to this case, the court inHarris applied the reasoning in Euge and concluded that fingerprints were also an "identifying physical characteristic" and fell within the scope of Rule 34. The court in Harris relied heavily on Alford v. Northeast Insurance Co., Inc., 102 F.R.D. 99, 101 (N.D. Fla. 1984), which stated that "the taking and furnishing of fingerprints is a matter within the contemplation of Rule 34." Like the court in Alford, the court in Harris concluded that fingerprints are physical characteristics, essentially like a "blood group" and, therefore, could be subject to production. 206 F.R.D. at 33 (citingAlford, 102 F.R.D. at 101).
The Court is in agreement with Euge and Harris. The broad language of Rules 26 and 34 codified a broad evidentiary obligation, one that certainly extends to the submission of fingerprints and palm prints. And like requests for handwriting exemplars under Rule 34, requests for fingerprints are requests for "identifying physical characteristics" that maybe useful as a form of "noncommunicative evidence." Alford, 102 F.R.D. at 101. For these reasons, the Court finds that it has authority under Rule 34 to compel non-parties to produce fingerprints. However, in the context of this case, it would be anomalous for the Court to apply the stringent Rule 35 standards to the defendants but not to non-parties. See Harris, 206 F.R.D. at 33. Like the court in Harris, the Court will, therefore, apply Rule 35's standards, namely the "in controversy" and "good cause" requirements, with respect to the Padgetts' motion to compel discovery from non-parties.
See Harris v. Athol-Royalston Regional School District Committee, 200 F.R.D. 18, 20 (2001).
Under Rule 34(c), non-parties may only be compelled to produce evidence using the means provided in Rule 45.
The Padgetts also contend that the Court may use its inherent power to compel non-parties to submit to physical examinations. The Padgetts contend Dinsel v. Pennsylvania R.R. Co., 144 F. Supp. 880, 882 (W.D. Pa. 1956) provides precedent for the Court to compel a non-party employee to a physical examination. However, the Court does not find Dinsel persuasive. Dinsel was decided prior to the 1970 amendments, when the language "legal custody and control" was added to Rule 35(a). As detailed supra, the 1970 Advisory Committee Notes make it clear that employees of a defendant corporation were not within the contemplation of the drafters of the 1970 amendment. Hence, the Court believes that the 1970 amendments were written to prevent future decisions like Dinsel, and thus, it is not instructive in this case.
2. Non-Parties' Fingerprints Are "In Controversy"
For the reasons stated above with respect to the named defendants, since authorship of the letter has not yet been conclusively determined, the fingerprints and palm prints of Howard Bell, Rosemary Carrera, Andrea Chelemengos, Eileen Finn-Kopp, Sue L'Heureux, Lisa Rice, Gordon Siebert and Michelle Wu remain "in controversy."
3. With The Exception Of Lisa Rice, "Good Cause" Does Not Exist To Compel Discovery From Any Non-Parties
The Padgetts' showing of good cause rests primarily on the deposition of Ms. Chelemengos, who admitted that Mr. Loventhal had shown her the Padgett article. However, the Court notes that while Ms. Chelemengos did admit that she saw the Padgett article, she also stated that she directly handed the Padgett article back to Mr. Loventhal after reading it. See Reedy Decl., p. 137. Unlike the City Council members, Ms. Chelemengos never received her own copy of the Padgett article. Id. at Exh. J, p. 2. Moreover, beyond Ms. Chelemengos' deposition, the Padgetts have only unsupported allegations to support their request that non-parties be required to provide fingerprints and palm prints. Thus, absent more convincing evidence, the Court does not find that the Padgetts have made a reasonable showing of "good cause" with respect to the non-party City officials, with the exception of Ms. Rice.
In light of Lisa Rice's confession, the Court finds that "good cause" exists to compel her to produce fingerprints and palm prints. However, under Rule 34(c), the Court's authority over non-parties requires implementation through Fed.R.Civ.P. 45. Since there is no record that the Padgetts served a Rule 45 subpoena on Ms. Rice, their request to compel fingerprints and palm prints from Ms. Rice is premature. Accordingly, the motion is denied without prejudice as to Ms. Rice.
V. CONCLUSION
For the reasons stated, the Court grants in part and denies in part the Padgetts' motion to compel fingerprints and palm prints. The Court grants the motion with respect to defendants Brian Loventhal, A. Curtis Wright, Erin Brodsky, Barbara Nesbet and David Baxter and denies the motion with respect to non-parties Howard Bell, Rosemary Carrera, Andrea Chelemengos, Eileen Finn-Kopp, Sue L'Heureux, Gordon Siebert, and Michelle Wu. With respect to Lisa Rice, the motion is denied without prejudice.
The fingerprints and palm prints shall be administered by Laurie Kaminski of Forensics Analytical at the Monte Sereno City Hall within thirty (30) days of the date of this order. Subsequently, the Padgetts are to provide defendants with the records of the original prints taken at that time.
IT IS SO ORDERED.