Cook v. City of Dallas
Cook v. City of Dallas
2012 WL 13191445 (N.D. Tex. 2012)
November 9, 2012
Solis, Jorge A., United States District Judge
Summary
The Court did not make any specific rulings regarding ESI, but noted that Plaintiffs requested that the Court order Defendants to preserve all relevant evidence. The Court admonished defense counsel to advise their clients of the requirement to preserve relevant evidence and warned of the dire consequences of violating this duty.
VICKIE COOK, Individually and as Natural Mother to DEANNA COOK, et al., Plaintiffs,
v.
THE CITY OF DALLAS, et al., Defendants
v.
THE CITY OF DALLAS, et al., Defendants
3:12-cv-03788-P
United States District Court, N.D. Texas, Dallas Division
Signed November 09, 2012
Counsel
Aubrey Nick Pittman, The Pittman Law Firm PC, Dallas, TX, Kristin Kay Schroeder, Kristin Kay Schroeder Attorney at Law, Euless, TX, for Plaintiffs Vickie Cook, A Minor, Karletha Cook-Gundy.Aubrey Nick Pittman, The Pittman Law Firm PC, Dallas, TX, for Plaintiffs A.W. Cook, N.W. Cook.
Kevin B. Wiggins, Sol Villasana, White & Wiggins LLP, Barbara S. Nicholas, Dallas County District Attorney, Civil Division, Dallas, TX, Rwan Saffarini Hardesty, Hardesty Law Office, PLLC, Midlothian, TX, for Defendant Tonyita Hopkins.
J.G. Schuette, Tatia R. Wilson, Dallas City Attorney's Office, Dallas, TX, for Defendants Johnnye Wakefield, Yaminah Shani Mitchell, Julie Menchaca, Amy Wilburn.
J.G. Schuette, Lindsay Erin Wilson Gowin, Dallas City Attorney's Office, Dallas, TX, for Defendant the City of Dallas.
Solis, Jorge A., United States District Judge
ORDER
*1 Now before the Court is Plaintiffs' Emergency Motion for Expedited Discovery and to Preserve Evidence filed on October 26, 2012. (Doc. 39) Defendant Kimberly Cole filed a Response on October 30, 2012. (Doc. 42) Defendants Angelia Herod-Graham and Tonyita Hopkins filed a separate Response on October 30, 2012. (Docs. 43-44) Defendants the City of Dallas (the “City”), Julia Menchaca, Amy Wilburn, Johnnye Wakefield, and Yaminah Shani Mitchell also filed a separate Response on October 30, 2012. (Docs. 45-46) Plaintiffs filed a Reply on November 1, 2012. (Doc. 49) After reviewing the parties' briefing, the evidence, and the applicable law, the Court DENIES Plaintiffs' Motion to Expedite Discovery and DENIES Plaintiffs' Motion to Preserve Evidence.
I. Background
This lawsuit involves alleged civil rights violations stemming from a 9-1-1 response that culminated in the death of Deanna Cook. (Doc. 39, p. 1) On September 19, 2012, Plaintiffs filed suit, alleging state and federal constitutional violations, 42 U.S.C. §§ 1983 and 1988 violations, and Texas Civil Practice and Remedies Code violations. (See Doc. 8) Plaintiffs name the City and seven individuals either presently or formerly employed by the City as defendants. (Id.) The parties present diverging accounts on whether a Federal Rule of Civil Procedure 26(f) conference took place. Defendants maintain that the parties never conducted a Rule 26(f) conference. (Doc. 42, pp. 2-5; Doc. 44, pp. 2, 5-7; Doc. 45, pp. 6-10, 19, 24-25) Plaintiffs argue that their counsel received a call on October 8, 2012, “for what Plaintiffs assumed was a Rule 26(f) call to confer about discovery.” (Doc. 49, p. 2) Plaintiffs then submitted discovery requests over email. (Id.) Shortly thereafter, from October 9, 2012 to October 24, 2012, Defendants filed a flurry of motions to dismiss for failure to state a claim.[1] (See Docs. 18, 20, 21, 29) To date, the Court has not directed the parties to conduct a Rule 26(f) conference.
Plaintiffs now move to: (1) “take expedited discovery on the issues involved in this lawsuit,” and (2) “preserve all potentially discoverable evidence.” (Doc. 39, pp. 2-3)
II. Motion to Expedite Discovery
a. Legal Standard
Under Rule 26(f), “the parties must confer as soon as practicable” and should “consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.” Fed. R. Civ. P. 26(f)(1)-(2). “The court may order the parties or attorneys to attend the conference in person.” Fed. R. Civ. P. 26(f)(2). As a principle of timing, “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except ... when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). In accord with the Federal Rules, the Court's Case Management procedures state:
*2 Once an answer has been filed, the judge issues an initial order requiring lead counsel for each party (or designated attorney with appropriate authority) to meet face-to-face within the time required by Fed. R. Civ. P. 26(f) at a mutually agreeable time and location to discuss the matters specified in the order and in Fed. R. Civ. P. 26(f).
Requirements for District Judge Jorge Solis, United States District Court for the Northern District of Texas, http://www.txnd.uscourts.gov/judges/jsolis_req.html (last updated Jan. 1, 2012).
While the Federal Rules do not address expedited discovery, courts generally analyze these motions in similar fashion to a preliminary injunction or require a showing of good case. St. Louis Grp., Inc. v. Metals & Additives Corp., 275 F.R.D. 236, 239 (S.D. Tex. 2011) (“Although the Federal Rules do not provide a standard for the court to use in exercising its authority to order expedited discovery, it is generally accepted that courts use one of the following two standards to determine whether a party is entitled to conduct such discovery: (1) the preliminary-injunction-style analysis; or (2) the ‘good cause’ standard.” (internal citation omitted and sentence reformatted)) (citing cases). Importantly, the Fifth Circuit has yet to weigh in on the appropriate standard. Id. at 240 (“The Fifth Circuit has not adopted either standard.”).
Both tests require the moving party to demonstrate more than fears and bare accusations to accelerate discovery. Under good cause, courts examine the record under a totality of the circumstances and seek to determine whether “the need for expedited discovery[,] in consideration of the administration of justice, outweighs the prejudice to the responding party.” Id. at 239 (quoting Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 327 (S.D.N.Y. 2005); Energy Prod. Corp. v. Northfield Ins. Co., No. 10-0933 SECTION: “C” (4), 2010 WL 3184232, at *3, 2010 U.S. Dist. LEXIS 90881, at *8 (E.D. La. Aug. 5, 2010) (quoting In re Countrywide Fin. Corp., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008))). Under analysis similar to a preliminary injunction, the moving party must show:
(1) irreparable injury; (2) some probability of success on the merits; (3) some connection between the expedited discovery and the avoidance of irreparable injury; and (4) some evidence that the injury that will result without expedited discovery is greater than the injury a party will suffer if the expedited relief is granted.
Edgenet, Inc. v. Home Depot U.S.A., Inc., 259 F.R.D. 385, 386 (E.D. Wis. 2009) (quoting Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982)).
b. Analysis
Plaintiffs argue that “Defendants have substantial discovery relevant to establishing the claims in the Complaint, including various electronic, written, audio, and other communications.” (Doc. 39, pp. 6-7) Plaintiffs further assert that conducting discovery will assist in identifying other potential defendants involved in allegedly “destroying discoverable information.” (Id. at 9) Moreover, expediting discovery presents no prejudice to Defendants because the information sought would inevitably be discovered “in the ordinary course of discovery requests in the lawsuit.” (Id. at 10) Plaintiffs specifically request that the Court enter an order:
Granting leave of Court for Plaintiffs serve written discovery upon all defendants in a format similar to the examples attached to this motion as Exhibits 1-4 [Requests for Documents; Discovery Requests to Tonyita Hopkins; Discovery Requests to Julia Menchaca and Amy Wilburn; First Set of Interrogatories to the City of Dallas];
*3 Requiring Defendants to respond fully to the written discovery within 14 days of receipt of the written discovery requests;
Granting Leave to Plaintiffs to serve deposition notices upon Defendants before a Rule 26(f) conference....
(Id.)
Notwithstanding these contentions, regardless of the legal test adopted to rule on expedited discovery, Plaintiffs fail to demonstrate that expedited discovery is warranted because the Court did not issue an order for the parties to conduct a Rule 26(f) conference and pending motions to dismiss do not necessitate expedited discovery. Under the Court's Case Management procedures, an order will issue requiring the parties to meet face-to-face and conduct a Rule 26(f) conference after an answer is filed. To be sure, a motion to dismiss does not stand in the place of an answer under this rule. Moreover, motions to dismiss are inherently rulings based solely on the pleadings without the need for evidentiary support otherwise addressable at summary judgment. See Iqbal v. Ashcroft, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). While Plaintiffs seem to contemplate that a Rule 26(f) conference may have occurred by phone, they cannot escape that no order was issued, the parties did not meet face-to-face, and Defendants seem less than satisfied that an ad hoc conference transpired.
Additionally, although Plaintiffs advance fact intensive claims, they fail to establish why discovery should be expedited before a Rule 26(f) conference or the resolution of Defendants' motions to dismiss. At best, Plaintiffs offer cursory arguments that discovery will shed light on additional defendants, unearth more claims, and preclude the destruction of evidence. Under the good cause theory, Defendants would in fact suffer prejudice through rapid and premature discovery before the Rule 26(f) conference or resolution at the Rule 12(b)(6) dismissal stage. Under the injunction theory, Plaintiffs do not address this standard in their briefing and, on the facts alone, Plaintiffs fail to demonstrate that expediting discovery will prevent irreparable harm. To the extent that evidence is languishing, other procedural vehicles may alleviate these concerns upon a proper showing.
In sum, Plaintiffs fail to show the need to expedite discovery at this stage in the proceedings.
III. Motion to Preserve Evidence
a. Legal Standard
Plaintiffs recycle the same legal standards for expedited discovery and then request that the Court order Defendants to preserve all relevant evidence. This type of request is more akin to a preliminary injunction preventing the destruction of evidence. Madden v. Wyeth, No. 3-03-CV-0167-R, 2003 WL 21443404, at *1, 2003 U.S. Dist. LEXIS 6427 at *2 (N.D. Tex. Apr. 16, 2003) (citing Pepsi-Cola Bottling Co. of Olean v. Cargill, Inc., No. 3-95-784, 1995 WL 783610, at *3, 1995 U.S. Dist. LEXIS 19735 at *7 (D. Minn. Oct. 20, 1995)) (“A motion to preserve evidence is an injunctive remedy and should issue only upon an adequate showing that equitable relief is warranted.”); see also Humble Oil & Refining Co. v. Harang, 262 F. Supp. 39, 42 (E.D. La. 1966) (concluding that a preservation order is a form of restraining order). To secure preliminary injunctive relief, the moving party must establish:
*4 (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest.
Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir. 2008) (citing Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003)).
b. Analysis
Plaintiffs argue that evidence on certain discoverable devices “is likely to be frequently purged.” (Doc 39, p. 9) Plaintiffs stress “it has been represented that various officials within [the City] were given instructions (and/or took it upon themselves) to delete information regarding the events surrounding Deanna Cook's death and/or investigation into the practices leading to Ms. Cook's death.” (Id.) Plaintiffs further contend that “there is an immediate need to identify [the City's] employees and supervisors who have discoverable information and ensure that it is preserved or produced.” (Id.) Moreover, Plaintiffs assert that Deanna Cook's cellular provider, “upon information and belief,” may be deleting discoverable information. (Id.) Plaintiffs specifically request that the Court enter an order:
[r]equiring that all Defendants preserve all evidence in this action, including, without limitation, all information, items, and documents responsive to Federal Rule of [Civil Procedure] 26 as well as Plaintiffs' discovery requests, along with copies of any software, computers, laptops, PDA's[,] video cameras, other hardware or any form of media that have ever stored any of the information.[2]
(Id. at 10)
On balance, Plaintiffs fail to demonstrate beyond a general suspicion that Defendants and their agents may be intentionally or unintentionally destroying relevant documents. Plaintiffs do not identify the sources of the information indicating that evidence is slipping away and fail to present evidence that this type of conduct is even ongoing. But see Tracfone Wireless, Inc. v. King Trading, Inc., No. 3-08-CV-0398-B, 2008 WL 918243, at *1, 2008 U.S. Dist. LEXIS 20036 at *1 (N.D. Tex. Mar. 13, 2008) (mem. op.) (“The destruction of potentially relevant evidence has been confirmed by investigators hired by plaintiff, who have recovered over 50 empty TracFone clamshells from a dumpster at a video store in Carrollton, Texas, where defendants are conducting their bulk resale operation.”); AT&T Mobility LLC v. Arena Trading, Inc., No. 3-08-CV-0330-P, 2008 WL 624104, at *1, 2008 U.S. Dist. LEXIS 17353 at *1 (N.D. Tex. Mar. 5, 2008) (mem. op.) (“The destruction of potentially relevant evidence has been confirmed by investigators hired by plaintiffs, who have observed garbage bags full of empty GoPhone packaging materials in dumpsters maintained by Defendant Arena Trading, Inc.”).
Although Plaintiffs fail to establish why an order preserving evidence should issue, it bears mentioning that all litigants are obligated to take appropriate measures to preserve documents and information which are reasonably calculated to lead to the discovery of admissible evidence and likely to be requested during discovery. See, e.g., Hester v. Bayer Corp., 206 F.R.D. 683, 685 (M.D. Ala. 2001); Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984). Moreover, lawyers have an affirmative duty to advise their clients of pending litigation and the requirement to preserve potentially relevant evidence. Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991). Nevertheless, “[t]o supplement every complaint with an order requiring compliance with the Rules of Civil Procedure would be a superfluous and wasteful task, and would likely create no more incentive upon the parties than already exists.” Hester, 206 F.R.D. at 685.
*5 The Court is confident that defense counsel will advise their clients of the requirement to preserve relevant evidence and admonish them of the dire consequences of violating this duty.[3] Without some proof that evidence may be lost or destroyed, a preservation order is not appropriate. Accordingly, Plaintiffs' Motion to Preserve Evidence is denied.
IV. Conclusion
For the foregoing reasons, the Court DENIES Plaintiffs' Motion to Expedite Discovery and DENIES Plaintiffs' Motion to Preserve Evidence.
IT IS SO ORDERED.
Footnotes
Plaintiffs actually argue their Motion under “Federal Rule of Evidence 26.” (Doc. 39, p. 10) Given that the Federal Rules of Evidence begin with Rule 101, the Court assumes that Plaintiffs intended this statement to be under the Federal Rules of Civil Procedure.
These consequences include sanctions under Federal Rule of Civil Procedure 37 and giving a spoliation instruction to the jury.