JAMES G. RICE, Oregon State Bar ID Number 824884

Senior Deputy City Attorney

Email: Jim.Rice@portlandoregon.gov 

REBECA PLAZA, Oregon State Bar ID Number 053504

Deputy City Attorney

Email: Rebeca.Plaza@portlandoregon.gov 

Office of City Attorney

1221 SW 4th Avenue, Suite 430

Portland, OR 97204

Telephone: (503) 823-4047

Facsimile: (503) 823-3089

Of Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ANTHONY CROSS, 3:14-cv-01310-KI

PLAINTIFF,

DEFENDANTS' MOTION TO COMPEL

v. DISCOVERY

CITY OF PORTLAND, a public body,

CHARLES ASHEIM, in his individual

capacity, JAMES DEFRAIN, in his

individual capacity, CHRISTOPHER ORAL ARGUMENT REQUESTED

BURLEY, in his individual capacity,

PATRICK MURPHY, in his individual

capacity, BRIAN DALE, in his individual

capacity, and KEN DUILIO, in his individual

capacity,

DEFENDANTS.

CERTIFICATE PURSUANT TO LOCAL RULE 7-1 

Counsel for defendants City of Portland, Charles Asheim, James Defrain, Christopher

Burley, Patrick Murphy, Brian Dale and Ken Duilio, hereinafter ("Defendants") certify that

counsel for defendants and counsel for plaintiff have made a good faith effort to resolve the

issues in dispute, and have been unable to do so.

Page 1 — DEFENDANTS' MOTION TO COMPEL DISCOVERY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:14-cv-01310-KI Document 40 Filed 06/19/15 Page 1 of 4
I. MOTION

Defendants respectfully move the Court for an Order as follows:

1. Compel plaintiff to provide defendants with the discovery documents requested in

Defendant City of Portland's First Request for Production dated March 19, 2015. (Exhibit A,

Declaration of James G. Rice.)

2. Order plaintiff to tender the documents within 30 days and for every document

not produced provide a detailed explanation of the steps taken to obtain the document(s).

II. MEMORANDUM OF LAW

A. Introduction

Plaintiff asserts four claims for relief against Defendants as follows:

1. First Claim for Relief — Individual Liability, Excessive Force;

2. Second Claim for Relief - Municipal Liability, Monell, Adickes;

3. Third Claim for Relief — Individual and Municipal Liability, Assault;

4. Fourth Claim for Relief — Individual and Municipal Liability, Battery.

In attempting to conduct discovery, on March 19, 2015, Defendant City of Portland

served plaintiff with "Defendant City of Portland's First Request for Production" pursuant to

FRCP 33. (Exhibit A, Declaration of James G. Rice.) That discovery request required

production to the City of Portland no later than Monday, April 20, 2015.

On April 15, 2015, the Court held a status conference in the case and ordered Plaintiff to

respond to the City of Portland's request for production by June 15, 2015. (Docket No. 26). To

date, plaintiff has not responded to defendants' discovery requests. Additionally, on June 15,

2015, the Court issued an order directing the parties to confer on a new case schedule and file a

proposed schedule with the Court by June 30, 2015. (Docket No. 39).

B. Legal Standard 

FRCP 26(B)(1) permits parties to obtain "discovery regarding any non-privileged matter

Page 2 — DEFENDANTS' MOTION TO COMPEL DISCOVERY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:14-cv-01310-KI Document 40 Filed 06/19/15 Page 2 of 4
that is relevant to any party's claim or defense. Relevant information need not be admissible at

the trial if the discovery appears reasonably calculated to lead to the discovery of admissible

evidence."

FRCP 34(a)(1) provides that when served with a request for production, the responding

party must "produce and permit the requesting party to inspect, copy, test or sample" responsive

items within its "possession, custody or control." FRCP 34(b)(2) provides that a party has 30

days from the date of service to respond to a request for production of documents.

FRCP 37(a)(1) provides that "on notice to other parties and all affected persons, a party

may move for an order compelling disclosure or discovery." FRCP 37(a)(4) provides that an

"evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose,

answer, or respond."

C. Argument 

To date, plaintiff has not provided a formal response to the March 19, 2015 request.

Plaintiff has only tendered: 1) One link to a You Tube video; and 2) The name of one

eyewitness without the accompanying address.

Plaintiff has in 91 days not produced any other documents responsive to Defendant's

First Request for Production, nor has he provided any adequate explanation for the lack of

production, despite telephone calls and emails exchanges. The discovery sought is not complex

or difficult to obtain and of the type one would typically gather prior to initiating litigation.

In addition, plaintiff has not supported his privilege objections by providing a privilege

log within the 30-day time frame specified by Fed. R. Civ. Proc. 34(2), so the Court may find

that plaintiff has waived his privilege objections. The Court takes into account the following

factors: The degree to which the objection or assertion of privilege enables the litigant seeking

discovery and the court to evaluate whether each of the withheld documents is privileged (where

providing particulars typically contained in a privilege log is presumptively sufficient and

Page 3 — DEFENDANTS' MOTION TO COMPEL DISCOVERY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:14-cv-01310-KI Document 40 Filed 06/19/15 Page 3 of 4
boilerplate objections are presumptively insufficient); the timeliness of the objection and

accompanying information about the withheld documents (where service within 30 days, as a

default guideline, is sufficient); the magnitude of the document production; and other particular

circumstances of the litigation. Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for

Dist. Of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005).

Additionally, plaintiff has not produced photographs, a journal, notes, or pay stubs, all of

which by plaintiffs own admission are in his possession, custody and control.

D. Conclusion

Plaintiff is in violation of the Court's April 15, 2015 order, directing Plaintiff to respond

to the City of Portland's request for production by June 15, 2015. Plaintiff's noncompliance

with the Court's order has created the necessity of this motion. Moreover, the Court's recent

order directing the parties to confer and propose a new schedule, places Defendants in a difficult

position. It will be challenging to arrive at a new schedule when the most basic discovery

request requires court intervention.

For the above-stated reasons, the Court should grant the Defendants' Motion to Compel.

Dated: June 19, 2015

Respectfully submitted,

/s/ James G. Rice

JAMES G. RICE, OSB # 824884

Sr. Deputy City Attorney

Telephone: (503) 823-4047

Of Attorneys for Defendant City of Portland

Page 4 — DEFENDANTS' MOTION TO COMPEL DISCOVERY

PORTLAND CITY ATTORNEY'S OFFICE

1221 SW 4TH AVENUE, RM 430

PORTLAND, OREGON 97204

(503) 823-4047

Case 3:14-cv-01310-KI Document 40 Filed 06/19/15 Page 4 of 4