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SPD DOJ

SPD DOJ

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06/07/2012

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 REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL(C11-1041 RSM) - 1
PETER S. HOLMES
 
Seattle City Attorney600 Fourth Avenue, 4th FloorP.O. Box 94769Seattle, WA 98124-4769(206) 684-8200
 
1234567891011121314151617181920212223THE HONORABLE JUDGE RICARDO S. MARTINEZUNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLEMARTIN MONETTI, JR.,Plaintiff,vs.CITY OF SEATTLE, a municipal corporation;SHANDY COBANE, an individual; MARY L.WOOLLUM, an individual,Defendants.)))))))))))))No. 2:11-CV-01041-RSM
DEFENDANTS’
REPLY IN SUPPORT OFTHEIR MOTION TO BIFURCATEDISCOVERY AND TRIAL PURSUANT TOFED. R. CIV. P. 42(b)
I.
 
ARGUMENT
 
In brief reply to plaintiff’s response,
defendants address three points, two of which arelargely undisputed: 1) Defendants agree
with plaintiff’s proposal
that the ruling on the motion to
 bifurcate be deferred
until
argument and resolution of the defendants’ summary judgmentmotion.”
1
Plaintif 
f’s Response to Defendants’ Motion
to Bifurcate (Response) at 2. 2) Accordingly,if the motion is deferred, defendants modify and limit their request for a stay of 
 Monell
discovery
1
Defendants deny tha
t they violated CR 7(e)(2), as their motion was combined with their response to plaintiff’s motion
to compel. As the two motions are inextricably intertwined, defendants chose to draft the two together for the ease of the Court. As such, defendants properly had 12 pages for each brief and only used 12 for their combined effort.Despite his complaints, plaintiff proposes deferring the motion to bifurcate as a solution.
Case 2:11-cv-01041-RSM Document 44 Filed 05/18/12 Page 1 of 6
 
 REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL(C11-1041 RSM) - 2
PETER S. HOLMES
 
Seattle City Attorney600 Fourth Avenue, 4th FloorP.O. Box 94769Seattle, WA 98124-4769(206) 684-8200
 
1234567891011121314151617181920212223only until the resolution of their motion for summary judgment. 3) Should
 Monell
discovery berequired, that discovery should be limited to the production of use of force files and complaints tothe Office of Professional Accountability regarding biased policing and language.
a.
 
Defendants agree that 1) the motion to bifurcate should be stayed until resolutionof their motion for summary judgment, and therefore, 2) their request for a stay of 
 Monell 
discovery is limited only until the resolution of summary judgment.
Defendants have met their burden to support their motion for bifurcation of the underlyingclaims from the
 Monell
claims. If plaintiff is able to prove his allegations of constitutionalviolations at trial, the remaining issues to be tried under
 Monell
will be 1) whether the City had acustom, policy, or practice that
amounted to deliberate indifference to plaintiff’s constitutional
rights and 2) that was the motivating force behind the constitutional violations. Defendantsrecognize that if both the determination of bifurcation and
 Monell
discovery is stayed untilresolution of summary judgment, the outcome of the motion for summary judgment will controlwhether
 Monell
discovery is appropriate.As such, defendants now limit their request for bifurcation to trial and only request that
 Monell
discovery be stayed until resolution of the motion for summary judgment. Bifurcating the
trial will preserve all defendants’ interest in an untainted presentation of the evidence relevant to the
underlying constitutional issues without confusing those issues with the data-intensive andotherwise irrelevant
 Monell
evidence. Both issues could be heard by the same jury and the
 Monell
 portion of the trial could proceed immediately after that of the underlying claims. This revision to
defendants’ request should address the majority of 
 
 plaintiff’s co
ncerns about bifurcation
2
.
2
Plaintiff argues the merits of his underlying claims, but a response to those arguments are best suited for the reply to
 plaintiff’s response to summary judgment.
 
Case 2:11-cv-01041-RSM Document 44 Filed 05/18/12 Page 2 of 6
 
 REPLY MOTION TO BIFURCATE DISCOVERY AND TRIAL(C11-1041 RSM) - 3
PETER S. HOLMES
 
Seattle City Attorney600 Fourth Avenue, 4th FloorP.O. Box 94769Seattle, WA 98124-4769(206) 684-8200
 
1234567891011121314151617181920212223
b.
 
If necessary,
 Monell 
discovery should be limited.
However, despite their willingness to consider
 Monell
discovery should it be necessary afterresolution of the pending motion for summary judgment, defendants mai
ntain that plaintiff’srequests remain hugely overbroad and burdensome as set forth in defendants’ Response ToPlaintiff’s Motion To Compel and Cross
Motion To Bifurcate (Docket No. 21 at 8-12). Plaintiff now contends that the December 16, 2012, Report of the Department of Justice, is admissible underthe hearsay exception set forth in
Fed. R. E. 803(8) and forms the basis of plaintiff’s claims and that
any effort to exclude the report will be fruitless. Response at 9-10. Defendants submit that theyshould not be forced to collaterally defend against the DOJ
’s inadmissible
hearsay opinion in thislitigation. There are
many
negative factors that weigh against the reliability and trustworthiness of the DOJ report and therefore Fed. R. E. 803(8) does not apply. While this argument will likely befleshed out if circumstances require, some of the highlights include: 1) Analysis under §14141 is
under a “reasonable cause” standard, not the preponderance of the evidence standard under §1983;
2) t
he only articulated support for DOJ’s
Report comes from the subjective opinions of two retiredlaw enforcement officials retained by DOJ as consultants (plaintiff has not even identified anyexpert to opine on the constitutionality of the hundreds of use of force files he seeks); 3) use of force must be analyzed under a totality of the circumstances analysis, not by a subjective reviewsolely of use of force reports, which is the methodology used by the DOJ
3
; 4) the DOJ report fails toprovide even the most basis information concerning its analysis such quantities on the x or y axesfor charts,
“n” value
s or sample sizes, confidence intervals, margins of error; 5) DOJ has
3
 
T
he United States Supreme Court specifically recognized that “[t]he test of reasonableness under 
the Fourth Amendment is not capable of precise definition or mechanical applica
tion.”
Graham v.Connor 
, 490 U.S. 386, 394 (1989)(citing
 Bell v. Wolfish
, 441 U.S. 520 (1979)). As such, an
analysis of force “requires careful attention to the facts and circumstances of each particular case[.]”
 Id.
 
Case 2:11-cv-01041-RSM Document 44 Filed 05/18/12 Page 3 of 6

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