Battle v. City of Ypsilanti
Battle v. City of Ypsilanti
2014 WL 12660098 (E.D. Mich. 2014)
September 5, 2014

Whalen, R. Steven,  United States Magistrate Judge

Scope of Preservation
Failure to Produce
Video
Mobile Device
Metadata
Forensic Examination
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Summary
The court denied the request for a full copy of Officer Schembri's “subject list” and for a forensic examination of Officer Schembri's computer and cell phone, as well as the request for metadata. The court also denied the request for an adjournment and protective order for the deposition of former Police Chief Amy Walker. However, the court granted the request for the video of a witness, to the extent that if any copy of the video that Officer Schembri recorded on his cell phone exists, it will be preserved and produced to Plaintiff.
Nina BATTLE, Plaintiff,
v.
CITY OF YPSILANTI, et al., Defendants
No. 13-13275
United States District Court, E.D. Michigan, Southern Division
Signed September 05, 2014

Counsel

Vincent J. Toussaint, Diallo, Cromer, Detroit, MI, Ronnie E. Cromer, Jr., The Cromer Law Group, PLLC, Southfield, MI, for Plaintiff.
Christopher M. Jennings, Judith A. Moskus, Garan Lucow Miller, P.C., Ann Arbor, MI, Megan K. Cavanagh, Garan Lucow, Detroit, MI, for Defendants.
Whalen, R. Steven, United States Magistrate Judge

ORDER

*1 Before the Court is Plaintiff Nina Battle's Motion to Compel and Incorporated Motion for Protective Order [Doc. #26]. For the reasons discussed below, the motion will be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
This case arises out of Plaintiff's arrest by City of Ypsilanti Police Officers, including Defendant Officer Anthony Schembri. Plaintiff claims include unlawful seizure and excessive force in violation of the Fourth Amendment, false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress. As is my standard practice in discovery motions, I ordered the parties to meet, confer, and provide the Court with a joint list of unresolved issues. The parties' joint list [Doc. #33] indicates that the following discovery requests by the Plaintiff remain at issue:
(1) A full copy of Officer Schembri's “subject list,” which, according to his deposition testimony, is a list of individuals with whom he has come in contact in the past. He testified that when he sees an individual on the list, he pulls over and runs that person's name through the LEIN system to see if he or she has any outstanding warrants.
(2) Plaintiff seeks a forensic examination of Officer Schembri's personal computer, personal cell phone, “and any other computer (business or personal) that Officer Schembri used to prepare the original and/or supplemental “subject list” to determine if any person(s) were deleted therefrom....”
(3) Plaintiff seeks production and preservation of metadata associated with the creation and/or supplementation of the subject list.
(4) Plaintiff seeks production and preservation of any video of a witness to her arrest, that Officer Schembri captured on his personal cell phone during the events in question. Plaintiff also seeks forensic examination of Officer Schembri's computers or cell phones used on September 2, 2012, stating that “said forensic examination may contain the subject video....”
(5) Plaintiff seeks an adjournment for the continuation of the deposition of former Police Chief Amy Walker.
II. LEGAL PRINCIPLES
It is well established that “the scope of discovery is within the sound discretion of the trial court.” Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993); Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). In exercising its discretion, the court should first consider Fed.R.Civ.P. 26(b)(1), which states, in pertinent part:
“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party ... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action ... All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).” (Emphasis added).
III. DISCUSSION
1. The Subject List
Officer Schembri did not testify that he pulls over people that appear on the subject list. Rather, he testified the he pulls over and runs their names on the LEIN system to see if they have any outstanding warrants. He also testified that Plaintiff was not on the subject list, but rather was pulled over for a traffic violation. The relevance of the subject list is not apparent. Arguably, if Plaintiff's name had been on the list and then deleted, this might somewhat support an inference that the alleged traffic violation was a mere pretext for the stop. For Fourth Amendment purposes, however, that does not matter. In Whren v. United States, 517 U.S. 806, 813 (1996), the Supreme Court held that as long as there is some objective basis for a traffic stop, the officer's subjective motivation is irrelevant.
*2 Nevertheless, Defendants' counsel indicates that she produced the list to counsel previously. See Defendants' Response [Doc. #32], ¶ 31. The request to produce the original list is therefore denied as (a) irrelevant, and (b) moot.
2. Forensic Examination of Schembri's Computer and Cell Phone
Plaintiff makes this highly intrusive request in order to determine whether any changes or deletions were made to the subject list. However, I have already determined that the list itself is irrelevant. This request is denied for the same reason.
3. Metadata
Again, this relates to the subject list, which lacks relevance. The metadata has even less relevance, and this request is denied.
4. Videos of a Witness
Plaintiff argues that at the scene, a male witness was taking a video of the action on his cell phone, and that Officer Schembri, in turn, recorded a cell phone video of the witness. Plaintiff seeks Officer Schembri's video. Defendants argue that the “best evidence” of what happened is on the video that was recorded on the police car recording device.
If Officer Schembri took a video of a currently unknown male witness, that video is relevant, or at least reasonably calculated to lead to the discovery of relevant and admissible evidence. Police videos do not capture a 360-degree, or even a 180-degree view of the scene. If the witness could be identified and produced, he might well be able to provide additional information that was not captured on the police video. Schembri's video could well contain Schembri's own statements to the witness, statements that could give context to the ongoing events surrounding the Plaintiff's arrest.
However, Schembri claims that he no longer has the cell phone on which he recorded the video. At a minimum, the Plaintiff is entitled to know when the cell phone was disposed of, and the circumstances surrounding its loss. If, for example, the phone was intentionally destroyed while litigation was pending, Plaintiff might be entitled to an adverse inference instruction. SeeResidential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002), quoted in Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories, Ltd., 2009 WL 998402 (E.D. Mich. 2009)(the party “seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that the destroyed evidence was ‘relevant’ to the party's claim or defense such that a reasonable trier of fact could find that it would support the claim or defense.”).
This request, therefore, will be GRANTED to the extent that (1) if any copy of the video that Officer Schembri recorded on his cell phone exists, it will be preserved and produced to Plaintiff; (2) if the cell phone and/or the video are no longer in Officer Schembri's actual or constructive possession, he will submit to Plaintiff's counsel a written statement, under oath, explaining when, how, and under what circumstances the cell phone and/or the video became unavailable.[1]
5. Adjournment and Protective Order
*3 Policy Chief Amy Walker's deposition was previously scheduled. Plaintiff opted not to go forward. There is no basis to grant Plaintiff's current request to re-schedule that deposition at this late date. Nor has the Plaintiff offered any basis for granting her a protective order.
IV. CONCLUSION
Under the terms discussed above, Plaintiff Nina Battle's Motion to Compel and Incorporated Motion for Protective Order [Doc. #26] is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.

Footnotes

Plaintiff has not shown a sufficient factual predicate in support of his request for a forensic examination of Officer Schembri's computer or other electronic devices.