Case 3:15-cv-00629-JLS-AGS Document 57 Filed 01/03/18 PageID.535 Page 1 of 2

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THOMAS E. MONTGOMERY, County Counsel
County of San Diego
By RICKY R. SANCHEZ, Senior Deputy (SBN 107559)
MELISSA M. HOLMES, Senior Deputy (SBN 220961)
FERNANDO KISH, Senior Deputy (SBN 236961)
1600 Pacific Highway, Room 355
San Diego, California 92101-2469
Telephone: (619) 531- 4874
E-mail: ricky.sanchez@sdcounty.ca.gov

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Attorneys for Defendant County of San Diego

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IN THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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CHASSIDY NeSMITH, individually and as
Guardian ad Litem on behalf of SKYLER
KRISTOPHER SCOTT NeSMITH, and as
Successor in Interest to THE ESTATE OF
KRISTOPHER SCOTT NeSMITH,

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Plaintiffs,
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)
v.
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COUNTY OF SAN DIEGO, SAN DIEGO )
COUNTY SHERIFF’S DEPARTMENT;
)
WILLIAM D. GORE, SAN DIEGO
)
COUNTY SHERIFF; VISTA DETENTION )
FACILITY; and DOES 1 – 100 inclusive,
)
)
Defendants.
)
)

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No. 15cv0629-JLS (AGS)
NOTICE OF MOTION AND MOTION
TO COMPEL THIRD PARTY WITNESS
KELLY DAVIS TO APPEAR FOR
DEPOSITION AND PRODUCE THE
REQUESTED DOCUMENTS
COMPLIANCE WITH SUBPOENAS
Date: February 2, 2018
Time: 4:00 p.m.
Courtroom: Suite 5160
Hon. Andrew G. Schopler, U.S. Magistrate
Judge
NO ORAL ARGUMENT UNLESS
REQUESTED BY COURT

TO PLAINTIFFS AND KELLY DAVIS, AND THEIR ATTORNEYS OF
RECORD:

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PLEASE TAKE NOTICE that on February 2, 2018, at 4:00 p.m., or as soon

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thereafter as the matter may be heard, in Suite 5160 of the above Court, located at 221 W.

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Broadway, San Diego, CA 92101, Defendant, the County of San Diego, will move the

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Court for an order compelling third – party witness Kelly Davis to appear for deposition

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and produce documents pursuant to subpoena.

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This motion will be based on this Notice, the accompanying Memorandum of Points and

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Authorities, and Notice of Lodgment, as well as all pleadings and papers on file in this

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action.

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DATED: January 3, 2018

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THOMAS E. MONTGOMERY, County Counsel
By: s/MELISSA M. HOLMES, Senior Deputy
Attorneys for Defendant County of San Diego

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THOMAS E. MONTGOMERY, County Counsel
County of San Diego
By RICKY R. SANCHEZ, Senior Deputy (SBN 107559)
MELISSA M. HOLMES, Senior Deputy (SBN 220961)
FERNANDO KISH, Senior Deputy (SBN 236961)
1600 Pacific Highway, Room 355
San Diego, California 92101-2469
Telephone: (619) 531- 4874
E-mail: ricky.sanchez@sdcounty.ca.gov

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Attorneys for Defendant County of San Diego

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IN THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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CHASSIDY NeSMITH, individually and as
Guardian ad Litem on behalf of SKYLER
KRISTOPHER SCOTT NeSMITH, and as
Successor in Interest to THE ESTATE OF
KRISTOPHER SCOTT NeSMITH,

)
)
)
)
)
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Plaintiffs,
)
)
v.
)
)
COUNTY OF SAN DIEGO, SAN DIEGO )
COUNTY SHERIFF’S DEPARTMENT; )
WILLIAM D. GORE, SAN DIEGO
)
COUNTY SHERIFF; VISTA DETENTION )
FACILITY; and DOES 1 – 100 inclusive, )
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Defendants.
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No. Case No. 15-cv-0629-JLS (AGS)
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL THIRDPARTY WITNESS KELLY DAVIS TO
APPEAR FOR DEPOSITION AND
PRODUCE DOCUMENTS IN
COMPLIANCE WITH SUBPOENA
Date: February 2, 2018
Time: 4:00 p.m.
Courtroom: Suite 5160
Hon. Andrew G. Schopler, U.S.
Magistrate Judge
NO ORAL ARGUMENT UNLESS
REQUESTED BY COURT

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FACTUAL AND PROCEDURAL HISTORY

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On February 9, 2016, Chassidy NeSmith, individually and as Guardian ad Litem

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on behalf of Skyler Kristopher Scott NeSmith (Plaintiffs) filed their Second Amended

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Complaint against Defendant, County of San Diego (Defendant or County), alleging

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claims for municipal civil rights (Canton) and wrongful death in connection with

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Decedent, Kristopher NeSmith’s March 1, 2014 suicide in a County jail. [Doc. No 19.]

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At the time of his suicide, Decedent was facing a potential life sentence for

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domestic violence, mayhem, resisting arrest, and attempted murder. [Doc. No. 19 at

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12:13-14, 12: 16-17.] Plaintiffs’ Second Amended Complaint alleges that the County

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should have been on notice of “inadequate suicide prevention policies and training

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programs” because there was a “pattern of similar constitutional violations.” [Doc. No.

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19 at 22:22-24.] Plaintiffs allege that Decedent’s suicide was part of a larger “pattern,”

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and in doing so incorporate and rely on the “research” of Kelly Davis (Davis) and her

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articles for a local free paper throughout the Second Amended Complaint. [See generally

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Doc. No 19 and at 23:7-27; 24:1-28; 25:1-2; 9-28; 26:1-4; 28:18-25; 29: 2-24; 30: 3-8;

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12-27; 31: 9-13; 34: 22-28; 35: 1-28; 36:1-22; 37:1-23.] Plaintiffs describe Davis as a

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“[l]ocal reporter who has dedicated her career to reporting and investigating deaths in the

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San Diego County jail... .” [Doc. No. 19 at 22:25-26.] Davis’ articles are also attached

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as Exhibits 3, 4, 5, 6, and 7 to the Second Amended Complaint. [Doc. No. 19 -1 at pp.

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10, 18, 20, 23, & 27.] When ruling on the Motion to Dismiss the Second Amended

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Complaint, the Court found that Davis’ articles along with other materials “could

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plausibly haven given the County notice” to support a municipal civil rights claims.

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[Doc. No. 25 Order on Motion to Compel 12:3 – 17.] Thus, it is necessary for the County

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to conduct discovery regarding the basis and accuracy of Davis’ research and

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publications relied on in the Second Amended Complaint.

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Pursuant to Federal Rule of Civil Procedure 45, on November 15, 2017, Defendant

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served Davis with both a subpoena for testimony at deposition and a subpoena for

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testimony at deposition and demand for documents. [Exs. A & B attached to the Notice

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of Lodgment (NOL) filed herewith.] The deposition was noticed for December 11,

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2017. [Ex. A to NOL.]

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On December 4, 2017, counsel for Davis called defense counsel to discuss the

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scope of the subpoena. The same day, counsel for Davis served objections to the

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subpoenas along with correspondence setting forth, in more detail, Davis’ objections to

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the subpoenas based on California state law and the First Amendment. [Exs. C & D to
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NOL.] Davis also objected alleging undue burden based on Davis’ health. [Id.] In the

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letter accompanying the objection, counsel for Davis stated that Davis would not honor

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the subpoena absent a motion to compel. [Ex. C to NOL at p. 7.]

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On December 6, 2017, defense counsel wrote Davis’ counsel requesting to meet

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and confer pursuant to Local Rule 26.1(a). [Ex. E to NOL.] On December 12, 2017,

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counsel for Davis and defense counsel met and conferred in an attempt to avoid Court

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intervention. They discussed the possibility of a stipulation that counsel for Davis would

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present to Plaintiffs’ counsel to potentially resolve the issue. [Ex. F & G to NOL.]

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Defendant proposed the following stipulation:

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1. The reporter Kelly Davis will be precluded from providing testimony (written or
oral) in the above captioned matter;

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2. Any publications (including but not limited to newspaper and online articles,
op/eds, tweets, blog posts, interviews or statements) by Kelly Davis or co-written
by Kelly Davis, or other publications that reference or relate to Kelly Davis’
publications regarding suicide, mortality, or death rates in the County of San Diego
jails shall not be admitted as evidence or referred to for any purpose in this action;
and

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3. Any research, notes, opinions, charts, or conclusions Kelly Davis made or has
regarding suicide, mortality or death rates in the County of San Diego jails (or
other publications or reports referencing Kelly Davis’ research, notes, opinions,
charts, or conclusions) shall not be admitted as evidence or referred to for any
purpose in this action. [Ex. F.]

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On December 19, 2017, Davis’ counsel responded stating Plaintiffs were unwilling

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to sign the stipulation and proposed order unless the following language was added to

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Paragraph 2 of the proposed stipulation and order – “except for the limited purpose of

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proving that the allegations made in the articles were in the public realm at the time of the

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articles’ publication and not for the purpose of proving the truth of the allegations.” [Exs.

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H & I to NOL.]

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The amendment to the stipulation proposed by Plaintiffs is untenable because it
would require the County to defend Davis’ opinions and conclusions without examining
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her. Davis’ deposition is necessary because the County requires an opportunity to inquire

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as to the basis and rationale of her conclusions if Plaintiffs are going to be referencing her

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conclusions to support their claims. The proposed amendment defeats the purpose of the

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stipulation by precluding examination of Davis but allowing for references to her articles

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and opinions. Accordingly, the County respectfully requests that the Court issue an order

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compelling Davis to testify at deposition and produce the requested documents. See

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Forsythe v. Brown, 281 F.R.D. 577, 587 (D. Nev. 2012), report and recommendation

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adopted, No. 3:10-CV-00716-RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012).

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ANALYSIS AND ARGUMENT

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I.

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FEDERAL LAW AFFORDS PARTIES BROAD DISCOVERY RIGHTS

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The Supreme Court has held that “deposition-discovery rules are to be accorded a

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broad and liberal treatment.” Hickman v. Taylor, 329 U.S 495, 507 (1947). All relevant

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evidence is subject to discovery. See USCS Fed. Rules Civ. Proc. R. 26(b)(1). This broad

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right of discovery is based on the general principle that litigants have a right to “‘every

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man’s evidence,’ …and that wide access to relevant facts serves the integrity and fairness

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of the judicial process by promoting the search for the truth.” Shoen v. Shoen, 5 F.3d

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1289, 1292 (1993) (citation omitted).

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II.

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FEDERAL PRIVILEGE LAW, NOT STATE LAW APPLIES

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Davis contends that California law bars the deposition. Such is not the case.

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Plaintiffs filed suit in federal court asserting three § 1983, federal question, claims against

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the County.

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California and federal law differ in how they apply evidentiary privileges to

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journalists. California law recognizes an absolute privilege for journalists under the

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California Constitution, Article 1, §2, Speech and Press, otherwise known as the

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Journalist Shield Law. See Delaney v. Superior Court, 50 Cal. 3d 785, 796-797, 798

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(1990); see also Cal. Civ. Proc. Code § 1986.1; Cal. Evid.Code § 1070.

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In federal question matters, there is only a qualified privilege for journalists.

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Federal privilege law is governed by Federal Rule of Evidence 501. FRE 501 recognizes

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federal common law as governing testimonial privileges, unless a federal statute, rules

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promulgated by the Supreme Court, or the United States Constitution provides otherwise.

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See also Crowe v. Cty. of San Diego, 242 F. Supp. 2d 740, 744-750 (S.D. Cal. 2003)

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(explaining “a garden-variety § 1983 claim is a federal claim governed by federal law”

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and therefore federal privilege law applies).

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III.

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THE QUALIFIED PRIVILEGE FOR JOURNALISTS DOES NOT PRECLUDE
DAVIS’ DEPOSITION

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In Branzburg v. Hayes, 408 U.S. 665 the Supreme Court “dealt precisely with the

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First Amendment free press provisions.” Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir.

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1975). The court combined three separate criminal trials in which reporters refused to

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disclose their sources to a grand jury and were subsequently charged with contempt. See

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id. The Court recognized there are some first amendment protections of news sources.

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See id. However, “the language of the case likewise indicate[d] that the privilege is a

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limited or conditional one.” Id. The Ninth Circuit noted that Branzburg “appears to

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teach broadly enough to be applied to other civil or criminal judicial proceedings as

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well.” Id. After Branzburg, circuit courts, including the Ninth Circuit, began recognizing

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a qualified privilege for journalist in both criminal and civil cases. See e.g. Shoen v.

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Shoen (Shoen I), 5 F.3d 1289 (9th Cir. 1993); Mark v. Shoen (Shoen II), 48 F.3d 412 (9th

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Cir. 1995). Ninth Circuit case law on the journalists’ privilege stems from two related

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cases Shoen I and Shoen II.

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In Shoen I, the Ninth Circuit acknowledged the existence of a qualified privilege

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for journalists. Shoen I, 5 F.3d at 1292. “When facts acquired by a journalist in the

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course of gathering the news become the target of discovery, a qualified privilege against
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compelled disclosure comes into play.” Id. The court further explained that “once the

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privilege is properly invoked, the burden shifts to the requesting party to demonstrate a

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sufficiently compelling need for the journalist's materials to overcome the privilege.” Id.

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at 1296. “At a minimum, this requires a showing that the information sought is not

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obtainable from another source.” Id. The court further recognized that the qualified

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privilege for journalists, applies to both confidential and non-confidential sources. Id. at

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1295. However, the “absence of confidentiality may be considered in the balance of

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competing interests as a factor that diminishes the journalist’s, and the public's, interest in

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non-disclosure.” Id.

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In Shoen II, the Ninth Circuit affirmed their decision recognizing a qualified

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privilege for journalists. 48 F.3d at 416. The Court expanded on Shoen I by creating a

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three part test to determine if the asserted privilege applied. The Court determined “that

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where information sought is not confidential, a civil litigant is entitled to requested

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discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty

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only upon a showing that the requested material is: (1) unavailable despite exhaustion of

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all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an

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important issue in the case…there must be a showing of actual relevance; a showing of

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potential relevance will not suffice.” Id. at 416.

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The factors set forth in Shoen II are not satisfied here. There are no indications

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that Davis’ opinions and articles rely on confidential sources. The information sought by

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the subpoenas is not cumulative and it is only available from Davis. While the County

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does have access to raw statistical data, such information is not reflective of her

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interpretations and analysis of that data. It is also directly relevant to an important issue –

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Plaintiffs’ Second Amended Complaint heavily relies on and cites to information set forth

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in Davis’ series of articles for the San Diego City Beat (an “alternative” free publication)

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titled “60 Dead Inmates.” Plaintiffs’ municipal civil rights claims against the County

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hinge on Davis’ articles and research. Her deposition is necessary to defend the

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municipal civil rights claims and is likely to provide evidence relevant to the County’s

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defense.
Davis’ analysis, motivations, and basis for her opinions are appropriate subjects for

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discovery in light of Plaintiffs’ claims. Davis’ decision to use specific factors and

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statistics when setting forth her opinions is not incorporated in those articles. Despite the

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County’s access to raw data, it requires information as to the judgements Davis employed

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when using data sets and formulas to create her statistics. For example, Davis has

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compared jail deaths in Orange and Los Angeles Counties to the County of San Diego.

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[Doc. No. 19 at 26:28 and Doc No, 19-1 at 28.] Unlike the County of San Diego, Orange

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and Los Angeles Counties employ both city and county jail facilities that could affect

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comparisons. Davis also provides quotes from multiple purported specialists on jail

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deaths that she spoke with but, due to the truncated nature of her articles, the totality of

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the opinions she relied on (and more importantly possibly chose to omit) are not set forth

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in her articles. [Doc. No. 19-1 at pp. 11 – 17 & 28 – 30.]
In order to successfully defend against Davis’ conclusions and opinions that San

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Diego had a higher number of suicides than similarly populated counties and that her

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articles put the County on notice of a pattern of alleged constitutional violations, it is

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essential that the County understand what variables Davis did or did not take into account

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while writing her articles.
The information regarding Davis’ opinions is highly relevant to Plaintiff’s

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municipal civil rights claim against the County. In order to prevail on their Canton

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claims, Plaintiffs need to prove that (1) they were deprived of their constitutional rights

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by the City acting under color of state law; (2) that the City has customs or policies which

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amount to ‘deliberate indifference’ to a plaintiffs constitutional rights; and (3) that these

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policies were the ‘moving force behind the constitutional violations.’ ” See Estate of

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Amos v. City of Page, 257 F.3d 1086, 1094 (9th Cir. 2001); see also Doc. No 25 (Order

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on Motion to Dismiss).

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IV.
DAVIS MAY HAVE IMPLIEDLY WAIVED HER PRIVILEGE BY DISCLOSING
NON-PUBLISHED INFORMATION TO PLAINTIFFS’ COUNSEL

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The journalist’s privilege like other testimonial privileges may be impliedly

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waived. See Ayala v. Ayers, 668 F. Supp. 2d 1248, 1250 (S.D. Cal. 2009); See also Sims

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v. Blot, 534 F.3d 117, 132 (2d Cir. 2008).

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In Ayala, the court determined that “[i]n the interests of fairness, a journalist/author

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should not be permitted to disclose information to advance the interests of one litigant

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and then invoke the journalist's privilege to prevent discovery of this same information by

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another litigant.” 668 F. Supp. 2d at 1250. Ayala involved an author who produced a

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manuscript to petitioner’s counsel, but later refused to produce it to respondent’s counsel.

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See id. at 1249-1250. In analyzing whether the author waived his privilege, the court

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cited to Sims v. Blot, a Second Circuit case which determined that “[i]n dealing with

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testimonial privileges… , we have held that a waiver may be implied in circumstances

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where it is called for in the interests of fairness.” 534 F.3d at 132. The court further

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explained that fairness considerations arise when litigants attempt to use a testimonial

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privilege as both a sword and a shield. See id. In other words, a journalist cannot use

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information to assist one litigant, but then claim a testimonial privilege in order to

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withhold information from another litigant.

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Here, Davis is refusing to submit to a deposition subpoena and produce documents

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relating to her communications with Plaintiffs’ counsel or any information related to her

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series of articles, “60 Dead Inmates.” However, Plaintiff’s Second Amended Complaint

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implies that Ms. Davis disclosed research to Plaintiffs’ counsel. These potential

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disclosures are encompassed in the Complaint’s independent references to “Ms. Davis’

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research.” Paragraphs 74, 97 and 123 state, “[a]ccording to Kelly Davis’ research –

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based on public records request for official death investigation reports and coroner’s

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reports – there have been 18 suicides in San Diego County jails since 2013.” [Doc. No.

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19 at 23:7-9, 29: 2-4, 35:1-3.] Paragraphs, 85, 107, 134 state “[a]ccording to Kelly Davis’

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research, there were four suicides in 2009, one in 2010, five in 2011, two in 2012, five in
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2013, six in 2014, and six in 2015. So far this year (2016) there has been one suicide. In

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short, there have been 18 suicides since 2013.” [Doc. No. 19 at 25:28, 26:1-3, 31:9-12,

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37:19-22.] Lastly, Footnotes 1, 2, 3, also set forth, “[i]n comparison, according to Kelly

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Davis’ research, Los Angeles County was able to get its suicides down from ten in 2013

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to five in 2014 and one in 2015. Orange County has had no suicides for the last three

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years.” [Doc. No. 19 at 26: Fn1, 31:Fn2. 37:Fn3.] These statistics are not in quotes and

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do not directly mirror information in the attached exhibits. Parts of the cited statistics are

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present in a few of Davis articles, but the direct quotes do not appear to stem from any

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single article. If this information does directly come from a publicly available article it

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was not attached as an exhibit to Second Amended Complaint.
VII.
USE OF DAVIS’ OPINIONS WITHOUT DISCOVERY IS PROBLEMATIC
Plaintiffs contend that:
“Davis …has dedicated her career to reporting and investigating deaths in
the San Diego County Jails. She began her series of investigations into San
Diego jail suicides in 2007. Since this time she has published over a dozen
articles highlighting the outrageous pattern of deaths and suicides in San
Diego County Jails.” [Doc. No. 19 at 22:25-28, 23:1-6.]

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Allowing Plaintiffs to rely on Davis’ research, conclusions and opinions without

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permitting her deposition to be taken is akin to permitting a party to present expert

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opinion without expert discovery. Federal Rule Evidence 501, “does not recognize any

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general privilege for experts.” See Kaufman v. Edelstein, 539 F.2d 811, 820 (2d Cir.

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1976) (“[T]here is no constitutional or statutory privilege against the compulsion of

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expert testimony…”); see also Wright v. Jeep Corp., 547 F. Supp. 871, 875 (E.D. Mich.

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1982) (“Privileges are the exception to the general duty of every citizen to provide

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evidence when necessary to further the system of justice.”); see also Wilkinson v. FBI,

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111 F.R.D. 432, 441 (C.D. Cal. 1986) ( “[A]lthough several opinions appear to be

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sympathetic to such a privilege, there is no case which explicitly holds that such a

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privilege exists.”)
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CONCLUSION

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The County acknowledges Davis’ health issues. The County will endeavor to

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ensure that the deposition will not be an undue burden on her health.
Accordingly, for the reasons set forth above, the County respectfully requests the

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court grant the Motion to Compel Deposition and Production of Documents.

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DATED: January 3, 2018

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THOMAS E. MONTGOMERY, County Counsel
By: s/MELISSA M. HOLMES
Attorneys for Defendant County of San Diego
E-mail: melissa.holmes@sdcounty.ca.gov

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No. 15-cv-0629-JLS (AGS)

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Document 57-2 Filed 01/03/18 PageID.547 Pagelof45

THOMAS E. MONTGOMERY. County Counsel
Count of San Dlt??
Senior De uty (SEN 10755

By RI KY R. SA 9g
MELISSA M. Senior 2209 1)
FERNANDO Senior Deputy PS 236961)

1600 Pacific Hi hway, Room 355

San Diego, Ca]: ornia 92101-2469
Telephone: (619) 531- 487%

E-mailz rleky.sanehez@sdeounty.ea.gov

Attorneys for Defendant County of San Diego

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

individuall and as
Guardian ad Litem on behalf of SK LER
KRISTOPHER SCOTT and as
Successor in Interest to THE ESTATE OF
KRISTOPHER SCOTT 

No. (AGS)

NOTICE OF LODGMENT IN SUPPORT
OF MOTION TO COMPEL THIRD
PARTY WITNESS KELLY DAVIS TO
APPEAR FOR DEPOSITION AND

Plaintiffs, PRODUCE THE RE UESTED
DOCUMENTS IN MPLIANCE WITH
v. SUBPOENAS
COUNTY OF SAN DIEGO, SAN DIEGO Date: Februaiy 2, 2018
COUNTY Time: 4:00 pm.

Courtroom: Suite 5160 
Hon. Andrew G. Schopler, U.S. 

WILLIAM D. GORE, SAN DIEGO
COUNTY DETENTION

and DOES I 100 inclusive, Judge
Defendants. NO ORAL ARGUMENT UNLESS
REQUESTED BY COURT

 

PLEASE TAKE NOTICE that Defendant County of San Diego hereby lodges the
following exhibits in support of their motion to compel:
Exhibit A subpoenas and notices for Kelly Davis? deposition and request for
documents;
Exhibit proof of service by process server for subpoenas and notices to Davis;
Exhibit objection to subpoenas by Davis;
Exhibit ?December 4, 2017 letter from Counsel for Davis, Guylyn Cummins, to Senior

Deputy County Counsel Melissa Holmes;

 

Cas






 

Document 57-2 Filed 01/03/18 PageID.548 Page20f45

Exhibit ?December 6, 2017 letter from Senior Deputy County Counsel Melissa Holmes
to Davis? counsel, to Guylyn Cummins and Matthew Halgren;

Exhibit County of San Diego?s [Proposed] Order and Stipulation, redacted;

Exhibit ?December 14, 2017 email correspondence from Senior Deputy County
Counsel Melissa Holmes to Guylyn Cummins and Matthew Halgren;

Exhibit ?December 19, 2017 letter from Guylyn Cummins to Senior Deputy County
Counsel Melissa Holmes; and

Exhibit I Plaintiffs? [Proposed] Order and Stipulation enclosed with December 19, 2017
letter to Senior Deputy Melissa Holmes, redacted.

THOMAS E. MONTGOMERY, County Counsel

By: SIMEIJSSA M. HOLMES, Senior Deputy
Attorneys for Defendant County of San D1ego

DATED: January 3, 2018

No. 15cv0629-JLs (AGS)

Case Document 57-2 Filed 01/03/18 PageID.549 Page30f45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.550 Page4of45

A0 83A (Rev 0'21?) Subpoena to Tesufy at a Deposnmn in erl Action

UNITED STATES DISTRICT COURT

for the
Southern District ol'Califomia

CHASSIDY ET AL.
Plainu??


. Civil Action No. 
COUNTY OF SAN DIEGO. ET AL.



Defendant
TO TESTIFY AT A IN A CIVIL ACTION
To: KELLY LYNN DAVIS

(?ame ofperson to whom this subpoena} is directed)

Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
deposition to be taken in this civil action. ll?you are an organization, yon must designate one or more of?cers. directors.
or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
those set forth in an attachment:

mace: mp0: Tou?iyfm??g 355 Date and Time:
an IC lg way, oom 
San Diego. CA 92101 12f11/2017 10.00 am I I

The deposition will be recorded by this method: Sienographicauy and Video

El Production: You, or your representatives, must also bring with you to the deposition the following documents,
electronically stored information, or objects, and must permit inspection, copying, testing, or sampling ofthe
material:

 

The following provisions of Fed. R. Civ. P. 45 are attached Rule 45(c), relating to the place ofcompliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and relating to your duty to
respond to this subpoena and the potential consequences of not doing so.

CLERK OF COURT
on I) 

Attorney ?5 signature

Signature ofCIerk or Bop?uh) Clerk

The name, address, e-mnil address, and telephone number of the attorney representing (name of parry)
Count? Of 35?" Diego who issues or requests this subpoena, are:

Melissa M. Holmes. Esq, (SBN 220961). Of?ce of County Counsel. 1600 Paci?c Highway. Rm 355, San Diego, CA

Notice to the person who issues or requests this subpoena
if this subpoena commands the production of documents, electronically stored information, or tangible things before
trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to

whom it is directed. Fed. R. Civ. P. 

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PageID.551 Page50f45

A0 BRA (Rev 02/14) Subpoena to Team}; at Deposition a Civil N:th (Page 13

Civil Action No, 

OF SERVICE
(This section shank! not be?ted with the court unless required by Fed. R. Chi. P. 45.)

I received this subpoena for (twine ofmdividualandtitte. :fany)
on (date)

0 served the subpoena by delivering a copy to the named individual as follows:

on (date) or

Cl I returned the subpoena unexeeuted because:

Unless the subpoena was issued on behalf of the United States, or one of its of?cers or agents, have also
tendered to the witness the fees for one day?s attendance. and the mileage allowed by law, in the amount of



My fees are for travel and for Services, for a total of 0.00

declare under penalty of perjury that this information is true.

Dale:

Server '5 signature

Printed name and title

Server '3 addrets

Additional information regarding attempted service, etc;

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PagelD.552 Page60f45

A0 88A (Rev 02114) Subpoena to Testify at a Deposition In a ClVli Action (Page 3)

Federal Rule ofCivil Procedure 45 and (Effective l2/l/13)

(cl Place of Compliance.

For a Trial. Hem-lug. or Deposition. A subpoena may command a
person to attend atrial. hearing. ordcposition only to follows
(A) within IOO miles ufwhere the person resides. is employed. or
regularly transects business in person. or
(B) within the state where the person resides. is employed. or regularly
transects business in person. if the person
It) is a party or a party?s officer; or
ill) is commanded to attend atrial and would not incur' substantial
expense.

For Other Discovery. A subpoena may command
production of documents, electronically stored information. or
tangible things at a place within IUD miles ofwhere the person resides. is
employed, or regularly transects business in person. and
inspection ofpremiscs at the premisas to be inspected

tut Protecting a Person Subject to Subpoena: Enforcement.

it) A voiding Undue Burden or Sanctions. A party or attorney
responsible for issuing and serving a subpoena must reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction which may include
lost earnings and reasonable attorney?s fees?won party or attorney who
fails to comply.

12) autumnal to Produce: Materials or Peron! Inspection

(A) Appearance Not Required. A person commanded to produce
documents. electronically stored information. or tangible things. or to
permit the inspection of premises. need not appear in person at the place at?
production or unless also commanded to appear for a deposition,
hearing. or trial.

(It) Objt?t?flrm: A person commanded to produce election:an or tangible
things or to permit inspection may serve on the party or attomcy designated
in the subpoena a written objection lo inspecting. copying. testing. or
sampling any or all ofthc materials or to inspecting the premises?or to
producing clecuonically stored Information in the form or forms requested
The obiectiun must he Served before the earlier oflht: time spectficd for
compliance or [4 days after the subpoena ts served [fan objection is made.
the folio-wing rules apply-

ti} At any time. on notice to the commanded person. the serving party
may move the court for the district where compliance ts required for an
order compelling production or Inspection

(ii) These acts may be required only as directed in the order. and the
order must protect a person who ts neither a party not a party?s officer from
signi?cant expense resulting from compliancr:

(3) arMorfhju'ng a Subpoena.

(A) ??lter: Required. On timely motion. the court for the district where
comptiance is required must quash or modify a subpoena that

it) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits
speci?ed in Rule 45in);

requires disclosure of privileged or other protected matter. ifoo
exception or waiver applies. or

(iv) subjects a person to undue burden.

[then Permitted To protect a person subject to or affected by 

Subpoena. the court for the district where compliance is required may. on
motion. quash or modify the subpoena il?it requires:

disclosing a trade secret or other con?dential research. development.
or commercial information; or

(it) disclosing an unrelatncd expert's opinion or inl?omtation that does
not describe Specific occurrences in diSputc and results from the expert?s
study that was not requested by a party.

(Cl Courtroom or on Alternative, In the circumstances
in Rule the court may. instead ofqunshing or
modifying a subpoena. order or production under speci?ed
Conditions it?the Serving party;

ti) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship. and
(it) ensures that the subpoenaed person will be reasonably compensate d.

to) Duties in Responding to a Subpoena.

i ll Producing Documents or Electronictu Stored These
procedures apply to producing or electronically stored
information

(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories to the demand.

ill) Form for Proctor-mg Electrotrtcaibt Stored Information Not Specified.
ll'a subpoena does not specify a form for producing stored
information. the person produce it in a form or forms tn
which it is ordinarily maintained or in a reasonably usable form or forms.

(C) irpforuurltort Produced in Only One Form, The
pcrsart responding need not produce the same electronically stored
infonnalion in more than one farm

Inocuessr?ble Electronically Stored Information, The person
responding need not provide discovery of electronically stored information
froth sources that the person identi?es as not reasonably accessible because
of undue burden or cost On motion to compel discovery or for a protective
order. the person responding show that the Information is not
accessible becuu5e of undue burden or cost. lfthot showing is
made. the court may nonetheless order discovery from such sources tithe
requesting piety shows good cause. considering the limitations of Rule
2otb}[2ltCJ The court may specify conditions for the discovery.

(It PHI-liege or Protection

Ur] tryarmurtou ll?ulu'rel'a?. A person withholding subpoenaed information
under a chum that 15 privileged or subject to protection as 
material must:

(It expressly make the claim: and

till describe the nature of the documents. communications. or
tangible things in a manner that. without revealing information itself
privileged or protected. will enable the parties to assess the claim.

[Ill Produced. If information produced in response to a
subpoena is subject to a claim ofprivilcge or efprotectitm as
trial-preparation material. the person melting the claim may notify any party
that received the information of the claim and the basis for it. Alter being
noti?ed. a party must return. sequester. or destroy the speci?ed
and an}.r copies it has: must not use or disclose the information
until the claim is resolved; must take tetetonublc steps to retrieve the
information if the party disclosed it before being noti?ed; and may 
present the information seal to the court for the district when:
compliance is required for a determination ul'tbc claim. The person who
produced the information must preserve the information until the claim ls


to) Contempt.

The court for the district where compliance is required?and also. utter a
motion is transferred. the issuing court?may hold in a person
who. having been se rved. fails without adequate to obey the
subpoena or on order related to it.

For access to subpoena materials, sec Fed it 45(a) Committee Nolt:(20l3)

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PagelD.553 Page7of45



 

THOMAS E. MONTGOMERY, County Counsel

County of San Diego 

By KY R. SA Senior; Delguty (SEN l07559)
MELISSA M. eput (SBN 220961)
ROBERT A. ORTIZ, Senior Deputy (S 246849)

1600 Paelfic Hi hway, Room 355

San D1ego,Cal1 ornia 9301-2469

Telephone: (619)531? 4874

Email: r1cky.sanchez@sdcounty.cagov

Attorneys for Defendant County of San Diego

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

NO. (AGS)

NOTICE OF DEPOSITION OF
KELLY LYNN DAVIS

CHASSIDY individuall and as
Guardian ad Litem on behalfof SK ER
KRISTOPHER SCOTT and as
Successor 1n Interest to THE ESTATE OF
KRISTOPI-IER SCOTT 

Date: December 11, 2017

Plaintiffs,
Time: 10:00 am.
v. Place: Of?ce of County Counsel

1600 Pacific Highway, Room 355
COUNTY OF SAN DIEGO, SAN DIEGO San Diego, CA 210
COUNTY 
WILLIAM D. GORE, SAN DIEGO
COUNTY VISTA DETENTION
and DOES 100 incluswe,

Defendants.



PLEASE TAKE NOTICE that pursuant to Federal Rules of Civil Procedure, Rule
30 and Rule 45, Defendant County of San Diego (?Defendant?) will take the deposition
of Kelly Davis (?Deponent?), on Monday, December 11, 2017, at 10:00 am, at
Office of County Counsel, 1600 Paci?c Highway, Room 355, San Diego, CA 92101.

Deponent is not a party to this action. Said deposition will be taken before a
deposition of?cer who is authorized to administer an oath. If the deposition is not
completed on the date set out above, the taking of the deposition will be continued from

day to day thereafter, excluding Sundays and holidays, at the same place until completed.

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PageID.554 Page8of45






 

Notice is further given that if an interpreter is required to translate testimony,
notice of the required language and dialect must be provided to Defendant at least ?ve
working days prior to the date of the scheduled deposition.

Pursuant to Federal Rules of Civil Procedure, Rule Defendant
reserves the right, and intends to videotape the deposition in addition to recording the
testimony by stenographic method before a certi?ed court reporter present at said time
and place. Defendant also reserves the right to introduce and use the videotape at the time
of trial.

DATED: November 9, 2017 THOMAS E. MONTGOMERY, County Counsel

By: M. HOLMES, Senior Deputy
Attorneys for Defendant County of San Diego

- 2 -
Notice of Deposition ofKelly Davis
NeSmiIh v. County ofSan Diego. 8! a1.  (AGS)

Case Document 57-2 Filed 01/03/18 PagelD.555 Page90f45

88A (Rev 02/14) Subpoena to Testify at Deposition in a Civil Action

UNITED STATES DISTRICT COURT

for the
Southern District of California

CHASSIDY NESMITH, ET AL.
Plainn??


. Civil Action No. 
COUNTY OF SAN DIEGO. ET AL.

uUUH?f??dw

Defendant
SUBPOENA T0 TESTIFY AT A DEPOSITION IN A CIVIL ACTION
To: KELLY LYNN DAVIS
(Name times; to tvhoniwifrismsiropoennmix direcied)
Testimony: YOU ARE COM MANDED to appear at the time, date, and place set forth below to testify at a
deposition to be taken in this civil action. lf?you are an organization, you must designate one or more officers, directors,

or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
those set Forth in an attachment:

plate: Cilfioe of County Counsel Data and Time;
1600 Paci?c Highway, Room 355 .
San Diegol CA 92101 121111201710.0? am

The deposition will be recorded by this method: and Video
4 Production: You, or your representatives, must also bring with you to the deposition the following documents,

electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
material; See attached Notice of Deposition of Keliy Davis and Request for Production of Documents

 

The following provisions of Fed. R. Civ. P. 45 are attached Rule 45(6), relating to the place ofcornpliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 4503) and relating to your duty to
respond to this subpoena and the potential consequences of not doing so.

0R 

Attorney ?5 signature

CLERK OF COURT

Signature afClerk or Depun' Cierk

The name, address, e-mail address, and telephone number of? the attomey representing (name of party)
county Of 53" Diego . who issues or requests this subpoena, are:

Melissa M. Holmes, Esq? (SEN 220961). Of?ce oi County Counsel, 1600 Paci?c Highway. Rm 355. San Diego, CA

     

Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things before
trial, a notice and a copy ofthe subpoena must be served on each party in this case before it is served on the person to

whom it is directed. Fed. R. Civ. P. 

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PagelD.556 Page 10 of45

A0 88A (Rev 021M) Subpoena to Testify at u. Deposnion in 11 Action (Page 2)

Civil Action No_ 15-CV-00629-JLS-AGS

PROOF OF SERVICE
(This section should not be?led with the court unless required by Fed. R. Civ. P. 45.)

I received this subpoena for (mime ofindividualand mic, irony}
on (date)

I served the subpoena by delivering a copy to the named individual as follows:

on (date) or

I returned the subpoena unexecuted because:

Unless the subpoena was issued on behail? of the United States, or one of its officers or agents, have also
tendered to the witness the fees for one day?s attendance, and the mileage allowed by law, in the amount of



My fees are for travel and for services, for a total of 0.00

I declare under penalty of perjury that this information is true.

?nte:
Server 's signature

Primed name and title

Sewer "5 address

Additional information regarding attempted service. etc.:

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PageID.557 Page 11 of45

A0 88A (Rev, 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 and (Effective 1211113)

to} Place of Com pliance.

(I) For a Trial. Hearing. or Deposition. A subpoena may command a
person to attend atrial. hearing. or deposition only as follows:
(A) within IOU miles of where the person resides. is employed. or
regularly business in person; or
{ill within the state where the person resides. is employed. or regularly
tronsucts business in person. if the person
(it is a party u: a ptu'ty's of?cer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.

For Other Directory. A Subpoena may command.

(A) production of documents. electronically stored information. or
things at a place within lOli miles of where the person resides, is
employed. or regularly trunsucls business in person; and

inspection of premises at the premises to be inspected.

{dl Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Bartlett or Expense: Sanctions. A party or attorney
responsible for and serving a subpoena must lulu.- reasonable steps
to avoid imposing undue burden or espouse on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction?which may include
lost earnings and reasonable fccs?-?on a pony or attorney who
fails to comply.

Command to Produce Materials or Portrait Inspection.

[at] Appear-aircr- Not Required. A per5on commanded to product.-
documents. electronically stored information. or tangible things. or to
permit the. need not appear itr person at the place of
produclitltt or impaction also to appear for It deposition,
hearing. or trial

{It} Gayecnons A person commanded to produce documents or tturpiblc
things or to permit inspection may serve on the party or attorney designated
in [he subpoena rt written objection to inspecting. copying. testing. at
sampling any or all oflhc mutcriuls or to inspecting the premisth to
producing electronically slorcd information to the form or requested.
The objection must be served before the earlier nfthe time speci?ed for

Compliance or I4 days tifch the subpoena is served lfan objection is made.

the following rules apply:

{it At any time. on notice to the com or andcd person. the serving party
may move the won for the district where compliance is required for an
order compel Ii up production or inspection

{ill acts may be required only as directed in the order. and the
order toast protect rt person who is neither a party not a party?s officer from
signi?cant expense resulting from compliance.

(3i or tr Subpoena.

When Required. On timely motion. the com for the district where
compliance is required must quash or modify a subpoena that

(it fails to allow a reasonable time to comply.

(ill requires a person to comply beyond the geographical limits
specified in Rule dsic):

requires disclosure of privileged or other protected matter. if no
exception or waiver applies; or

{iv} subjects a person to undue burden.

ill} ll?frcn Pct-armed. To protch a person subject to or affected by a

subpoena. the court for the district where compliance is required may. on
motion. quash or modify the subpoena if it requires:

(it disclosing a trade Secret or other con?dential research, 
or commercial information: or

[ill disclosing tut unrctoincd expert's opinion or information that does
not describe speci?c occurrences in dlSpulc and results from the expert "5
study that was not requested by a party.

us run tiller-trance. In the circumstances
described in Rule esrairsitu). the court may. instead of quashing or
modifying a subpoena. order appearance or production under speci?ed
conditions ifthc sawing party:

ti) shows a substantial need for the testimony or material that cannot be
otherwise tact without undue hardship; and
ill} ensures that the subpoenaed person will be reasonably compensated.

to) Duties in Responding to it Subpoena.

(I) Producing Documents or Electronic-nth! Stored Information. These
procedures apply to producing documents or electronically stored
information;

in} Documents. A person resounding to a subpoena to produce documents
must produce them as they are in the ordinary course ol'busincss or
must organize and label them to correspond to the categories in the demand

(Bl Form for Electron terri?c Stored infer-matron Nor Specular!
lfa subpoeo does not specify a form for producing stored
information. the person responding must produce it in a form or forms to
which it is ordinarily nrarntaincd or in a reasonably usable fona or forms.

{Cl Electronically Stored fryf'orrnatt'ort Produced in Only One Form. flit:
person responding need not produce the some electronically stored
information in more than not: form

Electronically Stored The person
responding need not provide discovery of electronically stored information
from sources that the person identi?es as not reasonably accessible because
ofurtduc burden or cost On molten to compel discovery or for a protective
order. the person rosy-trading must show that the infannat'ron is not
reruonably accessible because of undue burden or cost. If that showing is
made. the court may nonetheless order from such sources if the
requesting party shows good causrr. considering the limitations of Rule
The court may specify conditions for the discovery.

Clan-rainy Privilege or Protection

(A) Information Withheld r?t person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must

expressly make the charm; and

ill] describe the nature of the withheld documents. communications. or
tangible things in a trumpet that. without revealing information. itself
privileged or protected. will enable the parties to assess the claim.

[Ell information Produced If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material. the person making claim may notify any party
that received the infonanticn of the claim and the basis for it. Alter being
noti?ed. a pay must return. sequester. or dcsuoy the speci?ed
information and any copies it has: most not use or disclose the information
until the claim is resolved. must tultc reasonable steps to retrieve the
infonaation if the party disclosed it be fore beinpr notified. and may 
present the information under seal to the court for the district where
compliance is required for a determination of the claim The person who
produced the information must preserve the information until the claim is
resolved.

Contempt.

The court for the district where compliance is required?and also. after a
motion is the issuing court?may hold in contempt a person
whu.ltt1virtg been served. l?uils without adequate excuse loobcy lltt:
subpoena or an order related to it

For access to subpoena materials. sec Fed Civ P. 45in) Committee Note (IOU)

EXHIBIT A

Case Document 57-2 Filed 01/03/18 PageID.558 Page 12 of45






24

 

THOMAS E. MONTGOMERY, County Counsel

County Senior Delguty (SBN [07559)
MELISSA M. HOLMES, Senior eput (SBN 220961)
ROBERT A. ORTIZ, Senior Deputy (S 246849)
l600 Paelfic Highway, Room 355

San Diego, Cali ornia 92101-2469

Telephone: (619)531- 4874

E-mail: ricky.sancltez@sdcounty.ca.gov

Attorneys for Defendant County of San Diego

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

CHASSIDY individuall and as

No. (AGS)
Guardian ad Litem on behalfof SK ER

KRISTOPHER SCOTT and as NOTICE OF DEPOSITION OF
Successor in Interest to THE ESTATE OF KELLY LYNN DAVIS AND
KRISTOPHER SCOTT RE UEST FOR PRODUCTION OF
DO UMENTS
Plaintiffs,
v. Date: December 2017

Time: 10:00 am.

Place: Office of ?County Counsel
1600 Pacrfic Highwa Room 355
San Diego, CA 210

COUNTY OF SAN DIEGO, SAN DIEGO
COUNTY 
WILLIAM D. GORE, SAN DIEGO
COUNTY SHERIFF VISTA DETENTION
and DOES 100 Incluswe,

Defendants.

PLEASE TAKE NOTICE that pursuant to Federal Rules of Civil Procedure, Rule
30 and Rule 45, Defendant County of San Diego (?Defendant?) will take the deposition
of Kelly Davis (?Deponent?), on Monday, December 11, 2017, at 10:00 at
Of?ce of County Counsel, 1600 Paci?c Highway, Room 355, San Diego, CA 92101.

11/



EXHIBIT A

Case Document 57-2 Filed 01/03/18 PagelD.559 Page 13 of45

ts.)



IO a-?sh- 

 

Deponent is not a party to this action. Said deposition will be taken before a deposition
of?cer who is authorized to administer an oath. If the deposition is not completed on the
date set out above, the taking of the deposition will be continued from day to day
thereafter, excluding Sundays and holidays, at the same place until completed.

Notice is further given that if an interpreter is required to translate testimony,
notice of the required language and dialect must be provided to Defendant at least ?ve
working days prior to the date of the scheduled deposition.

Pursuant to Federal Rules of Civil Procedure, Rule Defendant
reserves the right, and intends to videotape the deposition in addition to recording the
testimony by stenographic method before a certi?ed court reporter present at said time
and place. Defendant also reserves the right to introduce and use the videotape at the time
of trial.

You are further noti?ed that you are required to produce the following documents,
records, or other material, at said deposition:

1. Any and all documents, notes, and recordings, including in electronic
format, that you relied on when reporting andi?or publishing that the
San Diego County?s incarceration mortality rate ?leads in California?s
largest jails?.

2. Any and all documents, notes, and recordings, including in electronic
format, that you relied on when reporting and/or publishing that the
County of San Diego jails had/has a ?high suicide . . . rate 

3. Any and all documents, notes, and recordings, including in electronic
format, that reflect communications from 2010 to present with anyone
from the law ?rm of Morris Law Firm, Ape, including but not limited
to Danielle R. Pena, Esq. and/or Christopher Morris, Esq. regarding
San Diego County jail mortality and suicide rates.





- 2 .
Notice of Deposition of Kelly Davis and Request for Production of Documents
NeSmr'Ih v. County ofSon Diego, at i (AG3)

Case Document 57-2 Filed 01/03/18 PagelD.560 Page 14 of45





Any and all documents, notes, and recordings, including in electronic
format, that re?ect communications from 2010 to present with anyone
from the law ?rm of Morris Law Firm, Apc, including but not limited
to Danielle R. Pena, Esq. and/or Christopher Morris, Esq. regarding
the attempted self-harming events/suicide/ attempted 
of: Kristopher NeSmith; Jason Nishimoto; Jonathan Thomas;
Benedicto Lopez; and Heron Moriarty, as well as communications
with Richard Berumen.

DATED: November 9, 2017 THOMAS E. MONTGOMERY, County Counsel

By: M. HOLMES, Senior Deputy
Attorneys for Defendant County of San Diego

- 3 
Notice of Deposition of Kelly Davis and Request for Production of Documents
NeSmirh v. County of San Diego. 31 at. i CaseEjiXH?gff?ggP?JLS (AGS)

Case Document 57-2 Filed 01/03/18 PagelD.561 Page 15 of45

EXHIBIT 

(?nQn 

Doc-ment57-2 Filed 

 

ATTORNEY {Name and Ad I'ess .-
SAN DIEGO COUNTY COUNSEL

MELISSA M. HOLMES, 220961
1600 PACIFIC HIGHWAY, ROOM 355
SAN DIEGO, CA 92101

ATTORNEY FOR (Name):


(619) 531-4860

 

 

Ref. No. or File No.

15-90156

 

Insert name of court. iudicial dislricl or branch court. if any:

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT
333 WEST BROADWAY, SUITE 420
SAN DIEGO, CA 92101

 

 

PLAINTIFF:

CHASSIDY NESMITH, ET AL.

 

DEFENDANT:

COUNTY OF SAN DIEGO, ET AL.

 

 

DATE:

PROOF OF SERVICE

 

CASE NUMBER:

15-CV-00629-J LS-AGS

TIME:

 

 

 

 

 

UNITED STATES DISTRICT COURT
DECLARATION OF SERVICE

I, THE UNDERSIGNED, DECLARE UNDER PENALTY OF PERJURY THAT I WAS ON THE DATE HEREIN REFERRED
TO OVER THE AGE OF 18 YEARS AND NOT A PARTY TO THE WITHIN ENTITLED ACTION. I SERVED THE:

SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL NOTICE OF SUBPOENA TO TESTIFY AT A
DEPOSITION IN A CIVIL NOTICE OF DEPOSITION AND REQUEST FOR PRODUCTION OF 

ON: KELLY LYNN DAVIS

PHYSICAL DESCRIPTION:
Age: Weight: 115-125
Sex: female Height: 5'3
Skin: CAUCASIAN

Hair: RED
Eyes: BLUE

Marks:

IN THE ABOVE MENTIONED ACTION BY DELIVERING TO AND LEAVING WITH THE ABOVE NAMED PERSON A

COPY THEREOF, AT:

3548 FLORIDA STREET, UNIT #2
SAN DIEGO, CA 92104

ON: November 15, 2017
AT: 01 :37 pm

Witness Fees Tendered: .00

Manner of service in compliance with Federal Code of Civil Procedure.

Fee for Service: 127.85
County: SAN DIEGO

I declare under penalty of perjury under the laws of the
The State of California that the foregoing information

 

 

r' Registration No.: 1863 containedinthe return of service and statement of
Advanced Attorney Services, Inc, service fees istrue and correct and thatthis declaration
3500 Fifth Ave., Suite 202 was executed onNovembe-r 16, 2017.
San Diego, CA 92103
(619) 299-2012
#74'  
Signature:
AKIBA T. MINIEFEE
FYHIEIT 
PROOF OF SERVICE

Order#: 3110001 S1 

Case Document 57-2 Filed 01/03/18 PagelD.563 Page 17 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.564 Page 18 of45

 

 

 

 

1 SHEPPARD, MULLIN, RICHTER HAMPTON LLP
A l_.nnitecl Liability Partnership
2 Including Professional Corporations
GUYLYN R. CUMMINS Cal. liar No. 122445
3 501 West Broadway. 1911?1-?loor
San Diego, California 92101-3598
4 Telephone: 619.338.6500
Facsimile: 619.234.3815
5 Email: 
6
Attorneys for Non-Part)l Journalist
7 KELLY LYNN DAVIS
8
IN THE UNITED STATES DISTRICT COURT
9
FOR Tl IE DISTRICT OF CALIFORNIA
10
Case No. 
1 1 CHASSIDY ET AL,
OBJECTIONS TO SUBPOENA TO
12 Plaintiff, TESTIFY AT A DEPOSITION IN A
CIVIL ACTION AND REQUEST FOR
13 v. PRODUCTION OF DOCUMENTS
FROM NON-PARTY OURNALIST
14 COUNTY OF SAN DIEGO, ET AL, KELLY LYNN DAVIS
15 Defendant. Date: December 11, 2017
Time: 10:00 am.
16 Place: Of?ce Counsel
1600 Paci?c I-lighway, Room 355
17 San I.)iego, CA 92101
IDLE TO TESTIFY AND PRODUCE DOCUMENTS

 

 

 

Case Document 57-2 Filed 01/03/18 PagelD.565 Page 19 0145



Journalist KELLY LYNN DAVIS (DAVIS) hereby objects to Petitioners?
subpoena for a deposition and production of records (the Subpoena), dated November 9,
2017, a true and correct copy of which is attached as exhibit 1, as follows:

1. Pursuant to Article 1, Section 2 of the California Constitution, the First
Amendment to the United States Constitution, California Evidence Code Section 1070,
California Code of Civil Procedure 1085, Federal Rule of Evidence 501, and the common
law, DAVIS is not required to testify to or produce information obtained in the course of
newsgathering in this civil case, and the Subpoena is therefore improper and objected to in
its entirety, and including each category set forth therein speci?cally. Delaney v. Superior
Court, 50 Cal. App. 3d 785 (Cal. Ct. App. 1990); New York Times Co. v. Superior Court
51 Cal. 3d 453 (Cal. 1990) (California?s news shield law is absolute against compelled
disclosures in a civil lawsuit); US. Const. amend Sheen. v. Sheen, 48 F.3d 412, 414-15
(9th Cir. 1995); Sheer: v. Sheen, 5 F.3d 1289 (9th Cir. 1993); Farr v. Pitchess, 522 F.2d
464, 467-68 (9th Cir. 1975) (discussing reporter shield law protections under the ?rst
Amendment).

2. The Subpoena subjects DAVIS to undue burden in light of the Subpoena?s
return date and severe health issues.

3. The Subpoena is vague and overbroad, and objected on these bases as well.

4. DAVIS reserves all other objections.

Dated: December 4, 2017
SHEPPARD, MULLIN, RICHTER HAMPTON LLP

By

 

GUYLYN R. CUMMINS
Attorney for KELLY LYNN DAVIS

 

 

EYI ri 
SMRH 434811011371 oanze'riotrs?r?d  =70 EUBPOENA TO AND PRODUCE DOCUMEN 1 

 

Case Document 57-2 Filed 01/03/PagelD.566 Page 20 of 45

SHEPPARD, MULLIN, RICHTER HAMPTON LLP

A Limited Liability Partnership

lnelud in Professional nrporalions

GUYLYN R. CUMMINS Cal. Bar No. 122445

501 West Broadway, 19'? Floor
San Diego. California 92101-3598
'l?clc ltnne: 619.338.6500
Iiacsnnilez 6l9.234.3815

Attorneys for Non-Partyr Journalist
KELLY LYW DAVIS

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

CHASSIDY NESMITIL ET AL,
Plaintiff,
v.
COUNTY OF SAN DIEGO, ET AL,

Defendant.

 

 

1

Case No. 
PROOF OF SERVICE

December 11, 2017

10:00 

Of?ce ofCounLy Counsel

l600 Paci?c: Highway, Room 355
San Diego. CA 92101

Date:
Time:
Place:

PROOF OF SERVICE

 

Case Document 57-2 Filed 01/03/18 PageID.567 Page 21 of45






24

 

 

At the time ol'_service. 11 was over 18years of age and not a arty to this action. 1
am employed in the County at San Diego, State ofCalii'ornia. My usiness address is 501
West Broadway. 1911?: Horn. San Diego. CA 92101-3598.

On December 4, 2017, I served true copies of the following document(s) described
as

12.04.17 LETTER TO OFFICE OF SAN DIEGO COUNTY COUNSEL

OBJECTIONS TO SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL
ACTION AND REQUEST FOR PRODUCTION OF DOCUMENTS FROM NON-
PARTY JOURNALIST KELLY LYNN DAVIS

on the interested parties in this action as follows:

Melissa M. Holmes

Ol'lice of San Diego County Counsel

16011 Pacific l--light-vay, Room 355

San Diego, California 921t?n-24oa

(619) 531-4874

Attorneys l?or Defendant County of San Diego

BY MAIL: I enclosed the documends) in a sealed cnvelo or package addressed
to the persons at the addresses listed in the Service List and? placed the envelope for
collection and mailing. following, our ordinary business practices. I am readily
familiar with the firm 5 or collecting and processing correspondence for
mailing. On the same ay that correspondence is placed for collection and mailing,
it is deposited in the ordinary course ol'business with the United States Postal
Service. in a sealed envelope with postage fully prepaid. I am a resident or
employed in the county where tlte mailing occurred.

131 BY OR ELECTRONIC TRANSMISSION: I caused a copy ofthe
document(s) to be sent from e-ntail address to the
persons at the e-mail addresses listed in the Service Dist. 1 did not receive, within a
reasonable time after the transmission, any electronic message or other indication
that the transmission was unsuccessful.

I declare under penalty ot?pcrjury under the laws of the United?Statesot'America
that the foregoing is true and correct and that 1 am employed to the of?ce of a member of
the bar of this Court at whose direction the service was made.

Executed On December 4, 2017. at San Diego, California.

. 71:2;

 

 

if: . {rii' . I  
.rlit.  {if (I   3'1 i 
l?{imberly K. Parr/tie, CCLS

Win 131843671 16 1

 


PROOF OF 

Case Document 57-2 Filed 01/03/18 PageID.568 Page 22 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PagelD.569 Page 23 of45

 .. Sliet?ipr-Jid Mullin Richter 81 Hampton LLP
- 51?31 West Broadway. trim Floor
San Diego 
Sig .338 6500 main
6'19 234 3815 main fax
wvv?uv sl leopardniutlin com

619.338.6645 direct


December 4. 2016
File Number: 07ER-114470

VIA E-MAIL AND U.S. MAIL

Melissa M. Holmes

Office of San Diego County Counsel

1600 Pacific Highway, Room 355

San Diego, California 92101-2469

e-mail: melissa.holmes@ sdcounty.ca.gov

Re: Subpoena to Journalist Kelly Davis
U.S. District Court for the Southern District of California Case No.: 
(AGS)
SubpoenaISubpoena Duces Tecum

Dear Counsel:

and Matthew Halgren are counsel forjournalist Kelly Davis with respect to the
subpoena you served on her. A copy of the subpoena is attached. The purpose of this letter is
to request that you withdraw the subpoena in light of the law set forth below regarding reporter
shield law protections under California law and the First Amendment to the U.S. Constitution.

All of Davis? pubiished information is available from public websites. including that for the San
Diego Union-Tribune. Accordingly. this fetter addresses any unpublished information sought
by the subpoena gathered in the course of newsgathering and reporting activities. if you wish to
discuss the issues raised herein further, my cell phone is 619-990-0123.

1. California's Journalist Shield Laijrotects Unpublished Information

Article 1. section 2, subdivisions (3) and of Caiifornia's Constitution allow journalists to
refuse to testify about any unpublished information sought in civil cases. (Deianey v. Superior
Court, 50 Cal. 3d "i85 (1990); New York Times Co. v. Superior Court. 51 Cal. 3d 453 (1991].
v. Superior Court (1999) 21 Cal. 4th 883.} In 1980. the people of California elevated this
protection to an absolute constitutional immunity against compelled testimony from nonparty
journalists ("Shield Immunity") in civil cases in article I, section 2(b) of California's Constitution.

(id) The Shietd Immunity states in pertinent part:

A publisher, editor, reporter, or other person connected with
or employed upon a newspaper, magazine or other periodical

EXHIBIT 

Case Document 57-2 Filed 01/03/18 Page 24 of45

Sheppard  1 

Melissa Holmes. Esq,
December 4, 2016
Page 2

publication,  shall not be adjudged in contempt by a judicial 
body  for refusing to disclose the source of any information
procured while so connected or employed for publication in a
or for refusing to disclose any unpublished
information obtained or prepared in gathering, receiving or
processing of information for communication to the public.

As used in this subdivision. ?unpublished information? includes
information not disseminated to the public by the person
from whom disclosure is sought, whether or not related
information has been disseminated and includes, but is not
limited to, all notes, outtakes, photographs, tapes or other data of
whatever sort not itself disseminated to the public through a
medium of communication, whether or not published information
based upon or related to such material has been disseminated.
(Emphasis added.)

The legislative history behind the constitutional mandate of "shall not be adjudged in
contempt" makes clear that judges do not have the powerto dilute this protection. (Cal. Const.
art. I, 2.) The Supreme Court, in ruling that the language of article section 2(b) is ?clear and
unambiguous." stated:

The language of article I, section 2(b) is clear and unambiguous
 The section states plainly that a newsperson shall not be
adjudged in contempt for ?refusing to disclose any unpublished
information." (Italics addedthe word "any"
makes clear that article I, section 2(b) applies to all information,
regardless of whether it was obtained in confidence. . . . In the
context of article section the word "any" means without limit
and no matter what kind.

(Delaney, supra, 50 Cal. 3d at pp. 797-798 [with emphasis].) The Court dismissed any
distinction between observations and other information: ?Information? includes "reception of
knowledge" and ?knowledge obtained from reading, observation or instruction. (lat, citing
Webster?s Dictionary.) The Court concluded:

As we have explained. article I, section 2(b) contains an

unambiguous definition of ?unpublished information.? . . . It is
bedrock law that if ?the law-maker gives us an express definition,
we must take it as we find it. .  (Citation omitted.) . . . "[Cjourts,

in construing the constitution, are bound to suppose that any
inconveniences involved in the application of its provisions,
according to their plain terms and import, were considered in its
formation, and voluntarily accepted as less intolerable then those

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PagelD.571 Page 25 of45

Sheppard?~ "a

Melissa Holmes, Esq.
December 4, 2016
Page 3

which are thereby avoided, or as fully compensated by
countervailing advantages." (Citation omitted.)

(Id. at p. 814.)

The case of In re Jack Howard, 138 Cal. App. 2d 816 (1955) (interpreting the statutory
predecessor to article section 2(b) of California's Constitution) demonstrates the far-reaching
contours of the Supreme Court's mandate that journalists not be compelled to testify to any
unpublished information. In In re Jack Howard, supra, the court held that, even where a news
article contains quoted statements of an identified individual, it cannot be assumed that the use
of quotation marks means the statement attributed to the source in the newspaper was actually
made by the source to the newsreporter. Id. at 818-819. Rather, the court reasoned, the
information could have been secured "in many ways; that is, [the reporter] might  have
learned of [the information] from another person;  he might have listened to a recording [of the
statement]; or the story might have been telephoned to his newspaper and rewritten by
someone else under his byline." Id. Thus, questions to a newsreporter as to whether
statements attributed to a source in a news article were actually made by the source violate
California's shield law protections.

In 1999, the California Supreme Court solidly reaffirmed the strength of the shield in
Miller v. Superior Court, supra, ruling that a prosecutor's desire or need for evidence under
article I, section 29 of the California Constitution cannot overcome the constitutional shield
immunity. Id. at 898. The Court plainly held that the state constitutional provision giving the
people "the right to due process of law" in criminal cases does not conflict with or Iimitjournalist
shield law protections, and thus the protection applies to all unpublished information sought by
the prosecutor, whether confidential or not. Id. at 843 (also noting the prosecution's right to due
process "has not been recognized to encompass the breach of established evidentiary
privileges and immunities" in otherjurisdictions as well).

Thus, California's Constitution is clear that no journalist covered by the Shield Immunity
has to testify to or produce any unpublished information, which encompasses all information
other than the broadcast.

2. Code of Civil Procedure Section 1986.1 Also Protects Newsreporters

In 2000, California?s Legislature added section 1986.1 to California's Code of Civil
Procedure to underscore the importance of constitutional protections afforded journalists and to
require courts to make the following findings for holding any journalist in contempt:

If a trial court holds a journalist in contempt of court in a
criminal proceedings notwithstanding subdivision of Section 2
of Article I of the California Constitution, the court shall set forth
findings, either in writing or on the record, stating at a minimum,
why the information will be of material assistance to the party
seeking the evidence, and why alternate sources of the
information are not sufficient to satisfy the defendant's right to a

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PagelD.572 Page 26 of45

Sheppa d? 

Melissa Holmes, Esq.
December 4, 2016
Page 4

fair trial under the Sixth Amendment to the United States
Constitution and Section 15 of Article of the California
Constitution. (Emphasis added.)

This provision was added to prevent the press from being made an investigative arm of
the state or private litigants unnecessarily. See Delaney, supra, 50 Cal. 3d at 821 ("Because
journalists not only gather a great deal of information, but publicly identify themselves as
possessing it, they are especially prone to be called upon by litigants seeking to minimize the
costs of obtaining needed information"); Miller, supra, 89 Cal. Rptr. 2d at 821 (noting "[t]he
threat sources will be reluctant to talk to the press if they believe they are effectively talking to
law enforcement officials, especially if the information is confidential; further noting the press will
lose credibility as an independent and objective source of information if associated with the
state).

3. California's Shield immunity Applies To Davis

a. The Plain Language of California's Shield Immunity Shows It Applies To
Davis

Article 1, section 2(b) of the California Constitution makes clear it applies to Davis and
the subpoena you have issued. Based on the California Shield Immunity, Davis hereby refuses
to testify regarding production or publication of the news story or to produce the records
requested which are "unpublished information.?

Because California?s constitutional immunity forjournalists provides substantive
protections for journalists, it applies in federal court cases, as well as state court cases. Article
I, section 2(b) immunities can be overcome only where a criminal defendant demonstrates that
nondisclosure of the information requested would deprive him of his federal constitutional right
to a fairtrial. Delaney, 50 Cal. 3d at 809; Miller, supra, passim. In order to meet this burden, a
criminal defendant must show there is a reasonable possibility the information requested will
materially assist his defense. ld. Competent evidence, not mere speculation, is required to
meet this burden. ld. Moreover, the evidence must be material, not merely relevant, to the
defense. Only where this threshold burden is met can the court then engage in balancing the
importance of protecting the unpublished information and the rights guaranteed under the shield
law against the defendant's right to a fair trial. Delaney, 50 Cal. 3d at 809.

If permitted to balance these conflicting interests, a court must consider the following
factors: (1) whether the information is confidential or sensitive; (2) the interests sought to be
protected by the shield law (9.9., whether disclosure would unduly restrict the journalists? access
to future sources and information, especially given that the primary purpose of the shield law is
to protect newsgathering); (3) the importance of the information to the defendant, is the
evidence dispositive or sufficiently material to require disclosure; and (4) the practicality of
obtaining such information from an alternative source. Delaney, supra, 50 Cal. 3d at 810?813.
Finally, where the information is confidential or sensitive, an in camera hearing must be held.

Id.

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.573 Page 27 of45

Sheppard 

Melissa Holmes, Esq.
December 4. 2016
Page 5

Here, the subpoena can not meet the Delaney test as Davis?s testimony and records are
being sought in a civil case. This, in addition to the other factors, show the Delaney test cannot
be met.

4. California?s Shield Law Applies Here Pursuant to Federal Rule of Evidence 501
and Federal Common Law

a. Rule 501 Requires Recognition of the Reporter?s Privilege Against
Compelled Testimony Under Federal Common Law

Davis has a further basis to refuse to testify, under federal common law and California?s shield
law, as applicable in federal court via Federal Rules of Evidence Rule 501.

Rule 501 holds that in federal question cases privileges "shall be governed by the principles of
the common law as they may be interpreted by the courts of the United States in the light of
reason and experience." It applies with equal force in civil cases, criminal cases and grand jury
proceedings. See Fed. R. Evid. 1 101. The United States Supreme Court?s guidance in Jq?ee v.
Redmond, 518 US. 1 (1996), compels recognition ofa reporter?s privilege under Federal Rule of
Evidence 501, separate from the privilege recognized under First Amendment jurisprudence. See
In re GrandJury Subpoena to Judith Miller, 438 F.3d 1 141 at 1 170-72 (DC. Cir. 2005) (Tatel,

., concurring) (applying .Jqffee to ?nd the existence ofa common-law reporters' privilege); see
also New York Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) 
have no doubt that there has been developed in [the last] thirty-four years federal common-law
protection for journalists' sources under [Rule 501] as interpreted by Rule 501
expressly empowers the federal courts to recognize and elucidate privileges "in the light of
reason and experience.? Fed. R. Evid. 501.

In Jqffee, in the absence of any federal legislation, the Supreme Court recognized a federal
privilege. In concluding that Rule 501 compelled recognition of such a
privilege, the Court identi?ed three factors: I) whether important private and public interests
would be served by recognition of the privilege; 2) whether the evidentiary cost of recognizing
the privilege was likely to be modest; and 3) whether similar protections were afforded by the
states.

Here, the first factor is plainly satis?ed, for reasons well-stated by the Ninth Circuit in Bursey v.
United States:

The First Amendment interests in this case are not confined to the
personal rights of [the journalists]. Although their rights do not
rest in the balance, far weightier than they are the public
interests in First Amendment freedoms that stand or fall with the
rights that these witnesses advance for themselves. . . The larger
purpose was to protect public access to 

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.574 Page 28 of 45

Sheppard?s?T?f?im

Melissa Holmes, Esq.
December 4. 2016
Page 6

Bursey, 466 F.2d 1059, 1083-84 (9th Cir. 1972) (citations omitted) (overruled on other grounds
by In re Grand Jury Proceedings 863 F.2d 667, 670 (9th Cir. 1988); see also Sheen 1, F.3d at
1292; Riley v. City ofC/resier, 612 F.2d 708, 714 (3d Cir. 1979) (recognizing reporter?s privilege
under Rule 501 in part because journalist?s inability to protect the confidentiality of sources .

. will . . . seriously erode the essential role played by the press in the dissemination of
information . . . to the public").

Thus, just as the Supreme Court concluded in Jeffee that the privilege
serves "[tjhe mental health ofour public good of transcendent importance" (518
US. at 1)rthe reporter's privilege serves the political. economic and social health ofour
citizenry by allowing the public to make informed decisions.

The second factor identified in Jofj?ee is also satisfied: The important interests served by the
reporter's privilege outweigh any evidentiary costs. This is true because, without a privilege,
sources will be much less likely to provide information to the press that prosecutors and/or
litigants will be interested in discovering. .Iofjee, 518 at 11-12.

The third .Jq?ee factor looks to whether there is a consensus among the states in favor of
recognizing the privilege. An overwhelming consensus exists today about the reporter?s
privilege. Shield laws have been adopted in 40 states, and the District of Columbia. See

30! i r-rriirnhs.

 

A final factor in determining whether a reporter's privilege should be recognized under Rule 501
is the treatment afforded reporters under the law ofCalifornia. See, Teimenbaim v. Deloii?te
Touche. 77 F.3d 337, 340 (9th Cir. 1996) (in determining federal law of privilege, court ?may
also look to state privilege law i- here. California's if it is enlightening?).

California?s shield law ?protects a newsperson from being adjudged in contempt for refusing to
disclose either: (1) unpublished information, or (2) the source of information, whether published
or unpublished.? Delaney v. Superior Court. 50 Cal. 3d 785, 805 (Cal. 1990); Miller v. Superior
Court, 21 Cal. 4th 883 (1990); Fast v. Superior Court, 80 Cal.App.4th 724, 730 (2000) (citation
omitted); Cal. Const. art. 1, see also Cal. Evid. Code 1070. "The shield law is, by its
own terms, absolute rather than quali?ed in immunizing a newsperson from contempt for
revealing unpublished information obtained in the newsgatherin process." Miller v. Superior
Court, 21 Cal. 4th 883. 890 (1999) (emphasis in original).

Courts have also held that California's constitutional shield laws (the "Shield Law") "protects all
unpublished information, even information that 'could or would con?rm or amplify the published
information or information derived therefrom." MCGurry v. University of'Srm Diego, 154
Cal.App.4th 97 (2007).

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.575 Page 29 of45

Sh  

Melissa Holmes. Esq.
December 4, 2016
Page 7

Moreover, courts have underscored that even published information may not be compelled from
a reporter where a party will be deprived of cross-examination with respect to related,
unpublished information by the California shield law. Fosl v. Superior Court, 80 Cal.App.4th at
p. 728. Where a witness refuses to submit to cross?examination, the "conventional remedy" is to
exclude the testimony. Id. at pp. 734-737.

5. Davis ls Entitled to First Amendment Protection As Well

The First Amendment to the United States Constitution provides supplemental protection
to California's Shield Immunity. The party seeking the information has the burden to show that
the information sought is: (1) unavailable despite exhaustion of all reasonable alternative
sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. (Shoen v.
Shoen, 48 F.3d 412, 415 (9th Cir. 1995).) As in Shoen, supra, this test cannot be met in this
case, for the same reasons the Delaney test cannot be met. and because Davis?s testimony and
sources would be cumulative of other sources from which the information sought can be
obtained.

6. Conclusion

For the reasons set forth, Davis requests that the subpoena be immediately withdrawn.
If the subpoena is not withdrawn, you will need to bring a motion to compel Davis? deposition.
Davis reserves her right to request her attorneys? fees and costs as a sanction in light of the law
set forth above.

Please also be aware she has been suffering from significant health complications. As
we discussed, you will accommodate her illness if the court grants your motion to compel.

Thank you for you anticipated cooperation.

Vei'y truly yours.

. x.

Guylyn R. Commits  .,
for SHEPPARD. ULLIN, RICHTER 8: HAMPTON LLP

3?


Enclosure

CC:

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.576 Page 30 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.577 Page 31 of45

 

OFFICE OF COUNTY COUNSEL MELISSA M. HOLMES
5" 1eoo PACEFIC HIGHWAY. ROOM 355. SAN Disco, CA 92101 
(619) 531-4830 Fax (619) 531%005 melts? holmemsdeounly on at

December 6, 2017

Guylyn R. Cummins VIA E-MAIL U.S. MAIL
Matthew Halgren

501 West Broadway, 19th Floor

San Diego, California 92101-3598


mhalarent?f?shepoardmullincom

Re: Chassidy NeSmith, et al. v. County of San Diego, et 
U.S.D.C. Case No. (JMA)

Dear Ms. Cummins,

I am writing in response to your letter sent via email on Monday, December 4, 2017 at
4:44 pm. As we discussed during our telephone conference on that day, it is Defendant?s
position that the subpoena is lawful in light of the allegations in Plaintiff's complaint relying on
Ms. Kelly?s articles as well as her communications with Plaintiffs? counsel. Thus, Defendant
will not be withdrawing the subpoena.

Based on the statements in your letter that a motion? to compel will be necessary if
Defendant does not withdraw the subpoena, I have noti?ed the court reporter and Plaintiffs?
counsel that the deposition will not be going forward on Monday, December 11, 2017 as noticed.

Per the Court?s Local Rule we need to set up an in person meet and confer
conference before ?ling a motion to compel. 1 am available to come to your of?ce for the
conference at the following times: December 8, 2017 at 10:30 am; December 11, 2017 at 8:30

am; or December 12, 2017 anytime between 8:30 am. and 4:00 pm. If you would prefer, we
can meet at my of?ce.





EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.578 Page 32 of45

a-E- December 6, 2017

I have also attached a copy of the operative complaint in this case. Paragraphs 70
through 85 involve 91aintiffs? reliance on Ms. Davis? reporting.

Very truly yours,
THOMA E. MONTGOMERY, County Counsel

   

By

LISSA M. HOLMES, Senior Deputy

cc#15-90156
CC: Danielle Pena. and Chris Morris via e?maii only

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.579 Page 33 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.580 Page 34 of45

 

1 THOMAS E. MONTGOMERY, County Counsel
CountyJ of San Diego
2 By KY R. SA Senior De uty (SEN 1075598
MELISSA M. HOLMES, Senior 6 2209 1)
3 FERNANDO KISH Senior Deputy 2369613
ROBERT oartz Sentor Deputy (SBN 24684 
4 1000 Pact?c Room 355
San Diego, Call omla 92101-2469
5 Telephone: (619) 531- 4860
6 Attorneys for Defendant County of San Diego
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
10
individual! and as No. (A08)
11 Guardian ad Litem on behalf of SK LER
KRI STOPHER SCOTT and as PROPOSED ORDER AND
12 Successor in Interest to THE ESTATE OF TIPULATI TO EXLCUDE
KRISTOPHER SCOTT TESTIMONY AND EVIDENCE RE
13 KELLY DAVIS ARTICLES AND
14 Plaintiffs, RESEARCH
v. Courtroom: 4A .
15 Hon. Janis L. Sammartino
COUNTY OF SAN DIEGO, SAN DIEGO
16 COUNTY 
WILLIAM D. GORE, SAN DIEGO
l7 COUNTY SHERIFF VISTA DETENTION
18 and DOES 1 100 inclusive,
Defendants.
19
20 It is hereby stipulated by the parties that:
21 .
2 1. The reporter Kelly Davis will be precluded from providing testimony
2
23 (written or oral) in the above captioned matter;
24 2. Any publications (including but not limited to newspaper and online articles,
25 .
26 op/eds, tweets, blog posts, interviews or statements) by Kelly Davis or co-written by Kelly
27 Davis, or other publications that reference or relate to Kelly Davis? publications regarding
28
EXHIBIT 

 

Case Document 57-2 Filed 01/03/18 PageID.581 Page 35 of45

\quo?mth?a




 

suicide, mortality, or death rates in the County of San Diego jails shall not be admitted as
evidence or referred to for any purpose in this action; and

3. Any research, notes, opinions, charts, or conclusions Kelly Davis made or
has regarding suicide, mortality or death rates in the County of San Diego jails (or other
publications or reports referencing Kelly Davis? research, notes, opinions, charts, or
conclusions) shall not be admitted as evidence or referred to for any purpose in this action.

IT IS SO STIPULATED

DATED: 2017 MORRIS LAW FIRM, AFC

Christa her Morris
CHRIS OPHER MORRIS
DANIELLE BENA .
Attorneys for Plaintiffs NeSmIth
Individually and as Guardian a, Litern on behalf of
Skyler Kristo her Scott NeSmnh, and and as 
Successor 1n nterest to Kristopher Scott 

By:

DATED: December 8, 2017 THOMAS E. MONTGOMERY, County Counsel

By: Meiissa M. Hohtres 
MELISSA M. HOLMES, Senior Deputy
Attorneys for Defendant County of San Diego

Per the stipulation of the parties, it is HEREBY ORDERED THAT:

1. The reporter Kelly Davis will be precluded from providing testimony
(written or oral) in the above captioned matter;

2. Any publications (including but not limited to newspaper and online articles,

op/eds, tweets, blog posts, interviews or statements) by Kelly Davis or co-written by

2

EXHIBIT NO. 150V0629-JLS (AGS)

Case Document 57-2 Filed 01/03/18 PageID.582 Page 36 of45



Kelly Davis, or other publications that reference or relate to Kelly Davis? publications
regarding suicide, mortality, or death rates in the County of San Diegojails shall not be
admitted as evidence or referred to for any purpose in this action; and

3. Any research, notes, opinions, charts, or conclusions Kelly Davis made or
has regarding suicide, mortality or death rates in the County of San Diego jails (or other
publications or reports referencing Kelly Davis? research, notes, Opinions, charts, or
conclusions) shall not be admitted as evidence or referred to for any purpose in this
action.

IT IS SO ORDERED.

Dated: 2017

 

 

Hon. Janis L. Sammartino

3

EXHIBIT 1: No. (AGS)

Case Document 57-2 Filed 01/03/18 PageID.583 Page 37 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PagelD.584 Page 38 of 45

From: We

To: aw I mmi :Masttmiiemm?

Cc: mm; mm; :Estz?esa: meals? 1
Subject: RE: Nesmith v. County of San Dlego - Subpoena to Kelly Davls
Date: Thursday, December 14, 2017 3:32:00 PM

Attachments: in I or I I

   

 



Ms. Cummins and Mr. I-Ialgren:

Attached please find the proposed stipulation we discussed on Tuesday. If Plaintiffs? counsel is
willing to sign the stipulation, there will be no need to depose your client. Per our? discussion, Ms.
Cummins said she would inquire with Plaintiffs' counsel as to whether the stipulation is amenable.
In light of the deadline to file a motion to compel, please get back to me by 
All], as to whether the stipulation will work.

In the meantime,  do not hesitate to call me if you have any questions or concerns.

Melissa Maria i-lolmes, Senior Deputy

Office of County Counsel

1600 Pacific Highway, Room 355

San Diego, CA 921010.469

Phone: (6i 9) 53 6836; Fax: (619) 53 I 43005
EwMail: - 1 - .1 "w

          



    

CONFIDENTIALITY NOTICE: This email message, including any attachments, is "for the sole use
of the intended recipient(s) and may contain information protected by the attorneywc-lient privilege.
the attorney work product doctrine or other applicable privileges or confidentiality laws or
regulations. If you are not an intended recipient, you may not review. use, copy, disclose or
distribute this message or any of the information contained in this message to anyone. If you are not
the intended recipient. please contact the sender by responding to this email and destroy all copies
of this message and any attachments. Unintended transmission shall not constitute waiver ofthe
attorney-client or any other privilege.

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.585 Page 39 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PagelD.586 Page 40 of45

r-  Sheppard Mullin Richter Hampton LLP
 501 West Broadway. 19th Floor
San Diego. CA 92101-3598
619.338 6500 main
619.234 3815 main fax
sneppardmullin com

619.338.6645 direct
gcummins@sheppardmullin.com

December 19, 2017
File Number: moo?092355

Melissa M. Holmes

Senior Deputy

Office of County Counsel

1600 Pacific Highway, Room 355
San Diego, CA 92101

Re: Chassidv NeSmith. et al. v. County of San Diego. et al.
Journalist Kelly Davis

Dear Ms. Holmes:

We have communicated with Christopher Morris, counsel for plaintiffs in the action referenced
above. Mr. Morris is willing to agree to your stipulation provided that it includes the additional
language in paragraph 2 reflected in the enclosed version of the stipulation.

The Ninth Circuit has explained that, under Federal Rule of Evidence 201(b), ?[c]ourts may take
judicial notice of publications introduced to indicate what was in the public realm at the time, not
whether the contents of those articles were in fact true.? Von Saher v. Norton Simon Museum of
Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010} (internal quotation marks omitted). Thus,
the Ninth Circuit has taken judicial notice of newspaper articles for the purpose of showing that
the public was on notice of the allegations or statements made in the articles, even while
specifically holding that the allegations or statements could not be offered for the truth of the
matters they asserted. Id.

The enclosed stipulation provides for use of Ms. Davis's articles for purposes identical to those
permitted under Federal Rule of Evidence 201(b). The stipulation states that Ms. Davis's
articles may not be used "except for the limited purpose of proving that the allegations made in
the articles were in the public realm at the time of the articles? publication and not for the
purpose of proving the truth of the allegations.? Under the stipulation, as you requested, all
parties would be precluded from calling Ms. Davis to testify.

It would be impossible for Ms. Davis to provide any information in response to your subpoena
that would change the fact that her articles were published and that their allegations were in the
public realm. If the parties enter into this stipulation, any information Ms. Davis could provide in
response to your subpoena would be entirely irrelevant because the fact of publication and the
concomitant public notice of the allegations stated in the articles would be the only issue for
which the articles could be considered. We therefore expect that you will agree to this version
of the stipulation and will withdraw your subpoena.

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.587 Page 41 of45

Sheppardft??vii 

Melissa M. Holmes
December 19, 2017
Page 2

We also note that any information Ms. Davis could provide in response to your subpoena would
be hearsay, and all information that she possesses regarding the matters discussed in her
articles is available from alternate sources. in particular, data on the number of deaths in
county jail systems in California and when the deaths occurred, in which you seem to be
particularly interested, are available from the jail systems themselves.

We are hereby confirming that, as we discussed during our meeting on December 12, 2017, in
the event that you do not withdraw your subpoena and instead move to compel Ms. Davis?s
testimony, we will likely move for sanctions to recoup the cost of opposing the motion. As we
explained in our letter of December 4, 2017, Ms. Davis is entitled to the reporter?s privilege
against compelled testimony under both state and federal law. Specifically, under California
law, the constitutional immunity against any compelled testimony in a civil case is absolute. We
also reiterate that the journalist's interests against compelled testimony are especially strong in
this case because Ms. Davis is suffering from severe health issues, and complying with your
subpoena would be unduly burdensome in light of her recovery needs and treatment schedules.

Please let us know whether you agree to this stipulation. We will be happy to address any
questions or concerns you may have.

Very truly yours.
t_ 

,Guylyn R. Cummins
for SHEPPARD, MULLIN, RICHTER HAMPTON LLP

3


SMRH 4550147001

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.588 Page 42 of45

EXHIBIT 

Case Document 57-2 Filed 01/03/18 PageID.589 Page 43 of45

1 THOMAS E. MONTGOMERY, County Counsel
Conn of San Dieoo 
By KY 11. Senlor De uty (SEN 1075598
MELISSA M. Sentor epu SBN 2209 1)
FERNANDO Senior Deputy (S 236961
ROBERT A. ORTIZ Senior orgaury (SBN 24am I
1600 Paci?c I-II - hwa ,Room 355 an Diego, Callfornia 92101-2469
Telephone: [61% 53 4860

Attomeys?for Defendant
County of San Diego

ALTON

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

10 CHASSIDY individually No. (A65)
and as Guardian ad Litem on behal of

1] SKYLER KRISTOPHER SCOTT PROPOSED ORDER AND

and as Successor :11 Interest TIPULATI TO EXCLUDE

12 to THE ESTATE OF KRISTOPHER TESTIMONY AND EVIDENCE RE

\Deoqcxuz

SCOTT KELLY DAVIS ARTICLES AND
13 RESEARCH

14 Conrtroorn: 4A .
v. Hon. Jams L. Sammartino

15
COUNTY OF SAN DIEGO SAN
16 COUNTY 
WILLIAM D. CORE,
SAN DIEGO COUNTY 
VISTA DETENTION and
18 DOES 1 100 Incluswe,

 

 

19 Defendants.

20

21 It is hereby stipulated by the parties that:

22 l. The reporter Kelly Davis will be precluded from providing testimony

23 (written or oral) in the above captioned matter;

24 2. Any publications (including but not limited to newspaper and online
25 articles, op/eds, tweets, blog posts, interviews or statements) by Kelly Davis or co-
26 written by Kelly Davis, or other publications that reference or relate to Kelly Davis?
27 publications regarding suicide, mortality, or death rates in the County of San Diego
28 jails Shall not be admitted as evidence or referred to for any purpose in this action

Case No. I 5cv00629-J LS 

SMRI I Issoiissi I ORDER AND STIPULATION

 

 

 

Case Document 57-2 Filed 01/03/18 PagelD.590 Page 44 of45

1 except for the limited purpose of proving that the allegations made in the articles
2 were in the public realm at the time of the articles? publication and not for the
3 purpose of proving the truth of the allegations; and
4 3. Any research, notes, opinions, charts, or conciusions Kelly Davis made
5 or has regarding suicide, mortality or death rates in the County of San Diego jails (or
6 other publications or reports referencing Kelly Davis? research, notes, opinions,
7 charts, or conclusions) shall not be admitted as evidence or referred to for any
8 purpose in this action.
9 IT IS SO STIPULATED
10
11 DATED: December 2017 MORRIS LAW FIRM, AFC
12
13 By' Christa her Morris
CHRIST PHER MORRIS
14 DANIELLE PENA I
Attorneys for Plaintiffs Chasstd 
15 Individual]?! and as Guardian a [stern on behalf
of Skyler _rtstop 1er and and as
16 Successor In Interest to Kristopher Scott
NeSmnh
17
18 DATED: December 2017 THOMAS E. MONTGOMERY, County
Counsel
19
20

By: Melissa Hohnes . -

21 MELISSA M. HOLMES, Senior DtEpury
Attorneys for Defendant County of San aego

22

23 Per the stipulation of the parties, it is HEREBY ORDERED THAT:

24 1. The reporter Kelly Davis will be precluded from providing testimony

25 (written or oral) in the above captioned matter;

26 2. Any publications (including but not limited to newspaper and online

27 articles, op/eds, tweets, blog posts, interviews or statements) by Kelly Davis or co~

28 written by Kelly Davis, or other publications that reference or relate to Kelly Davis?

Case No. 

SMHII 4350l396l 1 ORDER AND STIPULATION

 

 

 

Case Document 57-2 Filed 01/03/18 PageID.591 Page 45 of45

1 publications regarding suicide, mortality, or death rates in the County of San Diego

IQ

jails shall not be admitted as evidence or referred to for any purpose in this action

 

3 except for the limited purpose of proving that the allegations made in the articles
4 were in the public realm at the time of the articles? publication and not for the
5 purpose of proving the truth of the allegations; and
6 3. Any research, notes, opinions, charts, or conclusions Kelly Davis made
7 or has regarding suicide, mortality or death rates in the County of San Diego jails (or
3 other publications or reports referencing Kelly Davis? research, notes, opinions,
9 charts, or conclusions) shall not be admitted as evidence or referred to for any
10 purpose in this action.
ll IT IS SO ORDERED.
l2
l3 Dated: 2017
14 Hon. Janis L. Sammartino
T13- (3356 No. (AGE)

 

SMHH 4ESUI396I I ORDER AND 

 

 

 

Case 3:15-cv-00629-JLS-AGS Document 57-3 Filed 01/03/18 PageID.592 Page 1 of 2

DECLARATION OF SERVICE

I, the undersigned, declare under penalty of perjury that I am over the age of
eighteen years and not a party to the case; I am employed in the County of San
Diego, California. My business address is 1600 Pacific Highway, Room 355, Sari
Diego, California, 92101.
On January 3, 2018, I served the following documents:
NOTICE OF MOTION AND MOTION TO COMPEL THIRD PARTY WITNESS
KELLY DAVIS TO APPEAR FOR DEPOSITION AND PRODUCE THE
REQUESTED DOCUMENTS COMPLIANCE WITH SUBPOENAS;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL THIRD PARTY WITNESS KELLY DAVIS TO
APPEAR FOR DEPOSITION AND PRODUCE THE REQUESTED
DOCUMENTS IN COMPLIANCE WITH SUBPOENAS; and
NOTICE OF LODGMENT [N SUPPORT OF MOTION TO COMPEL THIRD
PARTY WITNESS KELLY DAVIS TO APPEAR FOR DEPOSITION AND
PRODUCE THE REQUESTED DOCUMENTS IN COMPLIANCE WITH
SUBPOENAS
In the following manner:
(BY E-MAIL) By emailing an electronic copy of the documents listed
above to the following e-mail addresses: gcumminsc’Thsheppardmullin.com,
rnhalgren(Thsheppardmul lin.com
(BY MAIL) By causing a true copy thereof, enclosed in a sealed envelope,
with postage ftilly prepaid, for each addressee named below and depositing
each in the U. S. Mail at San Diego, California.

Guylyn R. Cummins
Matthew Haigren
501 West Broadway, 19th Floor
San Diego, California 92101-3598
(BY CM/ECF) I cause to be transmitted a copy of the foregoing
document(s) this date via the United States District Court’s ECF System,
which electronically notifies all counsel as follows:

(Chassidy NeSmith, et al. v. County of San Diego, et al;
USDC Case No. No. 15-cv-0629-JLS (AGS))

 Case 3:15-cv-00629-JLS-AGS Document 57-3 Filed 01/03/18 PageID.593 Page 2 of 2

Christopher S. Morris Esq.
Chanell A. Kachi, Esq.
Danielle R. Pena, Esq.
MORRIS LAW FIRM, APC
501 West Broadway, Suite 1480
San Diego, CA 92101
(619) 826-8060 phone
crnorris(morris1awfirrnapc.com
dpena@morrisIawfirmapc.com
ckachi@morrislawfirmapc.com
Executed on January 3, 2018, at San Diego, California.

By:___
RUJILLO

(Chassidy NeSmith, et al. v. County of San Diego, eta!;
USDC Case No. No. 1 5-cv-0629-JLS (AGS))