Moses v. Morgan
Moses v. Morgan
2018 WL 11473679 (W.D. La. 2018)
May 16, 2018
Hayes, Karen L., United States Magistrate Judge
Summary
The court found that the defendant had destroyed the video surveillance footage, and that the plaintiff should be permitted to subpoena Chris Evans to establish whether DWCC acted in bad faith. The court also found that the defendant's objections to Interr. No. 9 and 11 were overruled, allowing the plaintiff to access ESI such as emails, documents, or other data. No other ESI was discussed.
Additional Decisions
Daytrend MOSES
v.
Shanice MORGAN
v.
Shanice MORGAN
CIVIL ACTION NO. 16-0390
United States District Court, W.D. Louisiana, Shreveport Division
Signed May 16, 2018
Counsel
Daytrend Moses, Homer, LA, Pro Se.Eddie David Gilmer, LA Atty General's Office, Shreveport, LA, for Shanice Morgan.
Hayes, Karen L., United States Magistrate Judge
MEMORANDUM ORDER
*1 Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to compel discovery [doc. # 40] filed by plaintiff pro se Daytrend Moses. The motion is opposed. For reasons assigned below, the motion to compel is granted-in-part and denied-in-part.[1]
Background
Plaintiff pro se Daytrend Moses, who is proceeding in forma pauperis in this matter, filed the instant civil rights complaint pursuant to 42 U.S.C. § 1983 on March 22, 2016. Moses is an inmate in the custody of Louisiana's Department of Public Safety and Corrections and is incarcerated at David Wade Correctional Center (“DWCC”) in Homer, Louisiana. He complains that on November 28, 2015, he was a victim of excessive force perpetrated by corrections officer Shanice Morgan. Moses sued Morgan, praying for a transfer to another facility and compensatory damages for physical pain and suffering for a sum no less than $500,000.
On June 19, 2017, plaintiff served defense counsel with interrogatories and requests for production and admission. See M/Compel, Decl. and Exhs. When defendants failed to respond to the discovery requests, plaintiff wrote to defense counsel on August 10, 2017, and inquired about the outstanding discovery. (Aug. 10, 2017, Letter from Moses to D. Gilmer; M/Compel, Exh.). When by November 22, 2017, defendants still had not responded to the discovery, plaintiff filed the instant motion to compel.
On November 29, 2017, the court granted a motion for protective order filed by defendant, Shanice Morgan, which stayed all discovery and briefing deadlines until after the court resolved defendant's then pending motion for summary judgment. [doc. #s 41-42]. The District Court denied defendant's motion for summary judgment on April 16, 2018. [doc. # 49]. Defendant filed his opposition to the motion to compel, together with his belated responses to plaintiff's discovery requests on April 27, 2018. [doc. # 51]. Plaintiff filed his reply brief on May 4, 2018. [doc. # 52]. Thus, the matter is ripe.
Analysis
I. Law
Rule 33 of the Federal Rules of Civil Procedure provides that a party may serve an interrogatory on another party that relates to any matter that may be inquired into under Rule 26(b). Fed.R.Civ.P. 33(a)(2). The interrogatories must be answered by the party to whom they are directed. Fed.R.Civ.P. 33(b)(1).
Rule 34 states that “a party may serve on any other party a request within the scope of Rule 26(b) ... to produce ... any designated documents or electronically stored information ... or any designated tangible things” that are within the “party's possession, custody, or control ...” Fed.R.Civ.P. 34(a)(1)(A) & (B).[2]
*2 A party objecting to discovery “must state with specificity the objection and how it relates to the particular request being opposed ...” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D. Tex. Sept. 25, 2006) (citations omitted). In other words, to escape the production requirement, a responding party must interpose a valid objection to each contested discovery request. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (citation omitted). Conclusory objections that the requested discovery is “overly broad,” “burdensome,” “oppressive,” and “irrelevant,” do not suffice. Id.
A party seeking discovery may move for an order compelling an answer or production against another party when the latter has failed to answer an interrogatory or produce documents. See Fed.R.Civ.P. 37(a)(3)(B). An evasive or incomplete response is treated as a failure to respond. Fed.R.Civ.P. 37(a)(4).
II. Analysis
Defendants contend that plaintiff's motion to compel is premature because he failed to confer with defense counsel before filing the motion. Indeed, Rule 37 provides that
[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
FED. R. CIV. P. 37(a)(1).
In addition, Local Rule 37.1 requires that the moving party certify that he or she has conferred in person or by telephone for the purpose of amicably resolving the discovery dispute:
[n]o motion relative to discovery shall be accepted for filing unless accompanied by a certificate of counsel for the moving party stating that counsel have conferred in person or by telephone for purposes of amicably resolving the issues and stating why they are unable to agree or stating that opposing counsel has refused to so confer after reasonable notice.
W.D. LA. LOCAL RULE 37.1.
Here, plaintiff, who is incarcerated, wrote to defense counsel and inquired about the status of his outstanding discovery – but to no avail. Moreover, a party's failure to satisfy conference requirements does not necessarily mandate denial of the motion, as the court retains discretion to waive absolute compliance with the conference requirements. Andra Grp., LP v. JDA Software Grp., Inc., No. 15-0011, 2015 WL 12731762, at *18 (N.D. Tex. Dec. 9, 2015) (citation omitted). The court may deem a failure to confer excusable when the conference would prove “a waste of time.” Id. (citation omitted). Given plaintiff's custodial status, and defense counsel's apparent disregard of the discovery requests and plaintiff's overtures until after the motion to compel was filed, the court agrees that further attempts at conciliation would prove futile.
In his initial brief, plaintiff argued that by failing to timely answer his discovery requests, defendant waived her right to interpose objections. There is some authority to support plaintiff's argument. See In Re U.S., 864 F.2d 1153, 1156 (5th Cir. 1989) (by failing to timely respond to the discovery, and in the absence of good cause, defendant has waived her right to object to the discovery requests). Moreover, the court is not unsympathetic to plaintiff's position.
Nonetheless, in her discovery responses, defendant raised some concerns regarding the privacy of other inmates. In addition, in his reply brief, plaintiff limited his discussion of defendant's objections to specific interrogatories and requests for production. Under these circumstances, the court will refrain from deeming defendant's untimely responses as a waiver of her ability to object. Going forward, however, defense counsel is admonished to ensure that he timely complies with the discovery requests of pro se plaintiffs, and that he refrains from interposing objections that this court often overrules. See e.g., Tate v. LeBlanc, No. 13-1253 (W.D. La.); Leonard v. LeBlanc, No. 13-2717 (W.D. La.).
*3 The court will proceed to address the disputed requests, in turn.
Prod. Req. No. 2
Any and all video footage from the north kitchen for November 28, 2015, which the plaintiff requested be preserved in his initial grievance.
Response:
Defendant asserts that with regard to the video surveillance system at David Wade Correctional Center (DWCC), the video feed is purged and recycled from the server every thirty (30) days due to limited storage capacity at the facility. Therefore, any camera footage showing the kitchen are of the North Compound of DWCC on November 28, 2015, was automatically purged from DWCC's server by the end of December of 2015.
Argument:
Plaintiff argues that, in his initial grievance, which DWCC received a mere five days after the incident at issue, he asked DWCC to preserve the security footage for purposes of further litigation. Officer Chris Evans investigated the assault and had ample opportunity to preserve the footage before it was overwritten. Plaintiff requests the opportunity to subpoena Evans so he can see whether the footage was reviewed and/or saved.
Resolution: A party's duty to preserve evidence arises when “the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Toth v. Calcasieu Parish, Civ. Action No. 06-0998, 2009 WL 528245 (W.D. La. Mar. 2, 2009) (Trimble, J.) (citation and internal quotation marks omitted); Dixon v. Greyhound Lines, Inc., Civ Action No. 13-0179, 2014 WL 6087226, at *3 (M.D. La. Nov. 13, 2014). A person “anticipat[ing] being a party ... to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.” Toth, supra. The duty to preserve extends to evidence that a party “knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.” Id.
When a party has destroyed evidence, the court may impose sanctions under Rule 37(b) or pursuant to its inherent authority. See Pressey v. Patterson, 898 F.2d 1018, 1020 (5th Cir. 1990) (discussing possible sources for the court's authority).[3] Sanctions on the latter basis, are limited to instances of “bad faith or willful abuse of the judicial process.” Pressey, supra (citation omitted); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2465 (1980) (finding of bad faith is required for any sanction under the court's inherent powers). Likewise, under Rule 37(b), a finding of bad faith or willful misconduct is required “to support the severest of remedies.” Id. However, courts do “not automatically draw an inference of bad faith simply because documents are destroyed after the initiation of litigation ...” Russell v. University of Texas of Permian Basin, 234 Fed. Appx. 195, 208, 2007 WL 1879157, *10 (5th Cir. June 28, 2007) (unpubl.) (citation omitted). The courts also ordinarily “do not draw an inference of bad faith when documents are destroyed under a routine policy.” Id.
*4 The court cannot compel defendant to produce the video surveillance because defendant maintains that it was not retained. Conversely, plaintiff certainly makes a colorable argument that DWCC was on notice that it should have preserved the video surveillance. One of the potential sanctions is an adverse inference instruction, i.e., that the video surveillance would have supported plaintiff's version of events. However, the availability and severity of the sanction is dependent upon the party's culpability. The court agrees that plaintiff should be permitted to subpoena Chris Evans to appear at trial so he can establish whether DWCC acted in bad faith. If warranted, plaintiff may petition the court at trial for an adverse inference jury instruction.
In the interim, the request is denied, as unavailable.
Prod. Req. No. 3:
Any and all grievances, complaints or other documents including conduct reports received by David Wade Correctional Center concerning the mistreatment of offenders and/or investigations into relationships with offenders by defendant Shanice Morgan since January 1, 2011.
Response:
Defendant objects to this request on the grounds of relevancy, that it is overbroad, unduly burdensome, and seeks confidential information regarding other inmates not parties to the suit.
Argument:
Defendant emphasizes that plaintiff is seeking vindication of his own civil rights, not those of other inmates. Moreover, because grievances are kept in the individual file of the complaining inmate, defendant argues that it will be unduly burdensome to comb through countless files in search of any grievance filed against Morgan. Finally, defendant argues that the grievances filed by other inmates contain their confidential information, and they have not waived their right to privacy.
Plaintiff responded to defendant's argument by agreeing to the redaction of inmates' names and DOC numbers. Furthermore, it appears that he is willing to limit the period for responsive documents to August 1, 2015, through April 1, 2018.
Resolution: Subject to the modifications detailed below, defendant's objections are overruled. The court observes that “although evidence of other bad acts committed by a defendant is not generally admissible to prove the character of that person or to show that he acted in conformity with such bad character on a particular occasion ... such evidence may be admissible for other purposes, as for example, to show intent.” Montgomery v. Boutee, No. 07-0094, 2010 WL 2545652, at *2 (M.D. La. June 21, 2010) (citations omitted). Moreover, information within the scope of discovery need not be admissible to be discoverable. Fed.R.Civ.P. 26(b)(1).
The court further rejects defendant's conclusory argument that complying with the request would prove unduly burdensome given the manner in which the records are maintained. Defendant has not offered any evidence or testimony which would explain the process required to obtain such records, the amount of time or cost that would be expended in compiling such records, or any other information to establish that production would be overly onerous.[4] Moreover, the court will limit the time period for responsive documents to August 1, 2015, through April 1, 2018. Defendant also may redact the inmates' names, social security numbers, and DOC numbers from the document production.
Interr. No. 9
Have you participated in or witnessed a use of force, if so, where?
Answer:
Defendant objects to Interrogatory Number 9 on the grounds of relevancy. Defendant asserts that plaintiff's complaint was filed alleging excessive use of force in violation of his civil rights and not those of other offenders housed at David Wade Correctional Center. Thus, defendant objects to this interrogatory as being irrelevant and not calculated to lead to the discovery of admissible evidence and/or resolution of this matter.
*5 Resolution: For the reasons discussed above, defendant's objection is overruled.
Interr. No. 11
Were you assured by any supervisors that this attack would be covered up? Have you had any other grievance against you?
Answer:
Defendant asserts that at no time did she attack or use force of any kind against plaintiff. Defendant objects to all other questions listed in Interrogatory Number 11 on the grounds of relevancy. Grievances complaints, etc., written and/or submitted by other individuals are considered confidential. Defendant asserts that plaintiff's complaint was filed alleging violation of his civil rights and not those of other offenders or employees at David Wade Correctional Center. Thus, defendant objects to all other questions listed in his interrogatory as being irrelevant and not calculated to lead to the discovery of admissible evidence and/or resolution of this matter.
Resolution: For the reasons discussed above, defendant's objection is overruled.
Interr. No. 12
Have you ever struck an offender either out of anger or jokingly?
Answer:
Defendant objects to Interrogatory Number 12 on the grounds of relevancy. Defendant asserts that plaintiff's complaint was filed alleging violation of his civil rights and not those of other offenders or employees at David Wade Correctional Center. Thus, defendant objects to this interrogatory as being irrelevant and not calculated to lead to the discovery of admissible evidence and/or resolution of this matter.
Resolution: For the reasons discussed above, defendant's objection is overruled.
Interr. No. 13
Have you ever been placed under investigation or questioned about inappropriate behavior with an offender?
Answer:
Defendant objects to Interrogatory Number 13 on the grounds of relevancy. Grievances, complaints, etc., written and/or submitted by other individuals are considered confidential. Defendant asserts that plaintiff's complaint was filed alleging violation of his civil rights and not those of other offenders or employees at David Wade Correctional Center. Thus, defendant objects to this interrogatory as being irrelevant and not calculated to lead to the discovery of admissible evidence and/or resolution of this matter.
Resolution: For the reasons discussed above, defendant's objection is overruled.
Interr. No. 14
Have you been named as a defendant in any other civil rights violation claim? If so, how many?
Answer:
Defendant objects to Interrogatory Number 14 on the grounds of relevancy. Defendant asserts that plaintiff's complaint was filed alleging violation of his civil rights and not those of other offenders or employees at David Wade Correctional Center. Thus, defendant objects to this interrogatory as being irrelevant and not calculated to lead to the discovery of admissible evidence and/or resolution of this matter.
Resolution: For the reasons discussed above, defendant's objection is overruled.
Conclusion
*6 For the above-assigned reasons,
IT IS ORDERED that plaintiff's motion to compel discovery responses [doc. # 40] is GRANTED-IN-PART and DENIED-IN-PART, as detailed in the body of this decision. Defendant shall supplement her discovery responses within the next fourteen (14) days from the date of this order. In addition to providing plaintiff with a copy of the supplemental responses, defendant shall file a copy in the court record, under seal.
In Chambers, at Monroe, Louisiana, this 16th day of May 2018.
Footnotes
As this motion is not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the standing order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).
Under Rule 26(b),
[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
The courts understand the rule to provide for broad and liberal discovery. See Schlagenhauf v. Holder, 379 U.S. 104, 114-5 (1964); Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385 (1947). Nonetheless, the scope of discovery is limited by relevance, albeit “relevance” is to be broadly construed. Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982).
“Even though a party may have destroyed evidence prior to issuance of the discovery order and thus be unable to obey, sanctions are still appropriate under Rule 37(b) because this inability was self-inflicted.” Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D. N.Y. Sept. 27, 1991) (citation omitted).
To help alleviate the recurrence of this situation in the future, it might behoove DWCC to either keep a separate master list of grievances filed against officers or file an extra copy of grievances directed against a particular officer in the officer's personnel file.