Carter v. The City of Montgomery et al (JOINT ASSIGN)

Filing 213

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 171 Second MOTION to Compel, as further set out in order. Signed by Honorable Judge Royce C. Lamberth on 5/14/19. (djy, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

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Aldaress Carter, et al.,
Plaintiffs,
v.
THE CITY OF MONTGOMERY,
ALABAMA,et al.,
Defendants.

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Case No: 2:15-cv-555(RCL)

MEMORANDUM AND ORDER
The City of Montgomery (the."City") clearly does not want this case to move forward, at
least with it as a party. At various times, it has asked for stays, moved to dismiss for failure to
state a claim, and—even after the Court denied that motion—moved for judgment on the
pleadings. And now, with the stay lifted and its motions largely denied, it appears its latest tactic
is to attempt to gum up the process through recalcitrance in discovery. But this case is old and
must start progressing toward trial or resolution. For the reasons stated herein, the Court will
largely grant Mr. Carter's Second Motion to Compel[ECF No. 171], as amended in the Joint Status
Report and Proposed Schedule [ECF No. 208].
In April 2017, Mr. Carter served his First Interrogatories and Requests for Production on
the City. Pl.'s Second Mot. Compel Ex. A, ECF No. 171-1. In June of that year, the City served
its responses to those requests, Pl.'s Second Mot. Compel Ex. C, ECF No. 171-3, but maintained
that it would not participate in discovery until the Court resolved its then-pending motion to stay
discovery. Pl.'s Second Mot. Compel Ex. E, ECF No. 171-5. Taking umbrage with that position,
Mr. Carter filed a motion to compel production of the requested discovery. Mot. Compel, ECF
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No. 127. However,the Court eventually granted the motion to stay the case pending resolution of
an appeal in a similar case involving the City. Order,ECF No. 131. And Mr. Carter's first motion
to compel was denied as moot. Order, ECF No. 138.
In June 2018, the stay was lifted, Order, ECF No. 142, and in July, counsel for Mr. Carter
asked the City for substantive responses to his original discovery requests. Pl.'s Second Mot.
Compel Ex. F, ECF No. 171-6. In September 2018, the City provided amended responses to Mr.
Carter's First Interrogatories and Requests for Production. Pl.'s Second Mot. Compel Ex. J, ECF
No. 210-1 (hereinafter, "RFP/Interrogatory Responses").

Still unsatisfied with the City's

responses, Mr. Carter filed his Second Motion to Compel—the subject of this Order. See Pl.'s
Second Mot. Compel, ECF No. 171.
But šince the filing of Mr. Carter's motion, the case has narrowed slightly. The Court
dismissed claims against the City for false imprisonment and money had and received—the only
claims against the City with a six-year, rather than two-year, statute of limitations. Order, ECF
No. 207. Accordingly, Mr. Carter has revised his document requests to the City reducing the time
frame from six to two years. Joint Status Report and Proposed Schedule 3, ECF No. 208.
Accordingly, the City submitted a supplemental response in opposition to Mr. Carter's motion.
City's Suppl. Resp., ECF No. 211. The Court evaluates the present motion in light ofthis change.
Although Mr. Carter seeks to compel responses to twenty-one separate requests for
production or interrogatories, see Second Mot. Compel ¶ 13, ECF No. 171, the Court begins by
responding to two of the City's global objections.
First, the City argues that it need not produce municipal court files or related records
because the "municipal court, though funded by the City, is part ofthe Unified Judicial System of
the State of Alabama and the courts' files are not city documents." RFP/Interrogatory Responses

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at 9, 11, 14, 15, 20,.22, 25, 27, 29, 36, 38, 52, 54, 57, 59, 61. Not so. Under Rule 34(a), a party
must generally produce responsive documents within its "possession, custody, or control." Fed.
R. Civ. P. 34(a). The Eleventh Circuit has "broadly construed 'control' for purposes of discovery
as 'the legal right to obtain the documents requested upon demand.'" Sergeeva v. Tripleton
Ltd., 834 F.3d 1194, 1201 (11th Cir. 2016)(quoting SeaRock v. Stripling, 736 F.2d 650, 653-54
(11th Cir. 1984)).
And a "legal right to obtaie does not require actual possession or legal control. Id. at 1201
n.6. For example, in Sergeeva, the Eleventh Circuit affirmed a district court's "determin[ation]
that 'the legal 'right to obtain documents requested upon demand' may be established where
affiliated corporate entities ... have actually shared responsive information and documents in the
normal course oftheir business dealings." Id. at 1201. In that case, a corporation could not avoid
producing responsive documents simply by claiming that they belonged to a separate, albeit
affiliated corporation. Id.
So too here. The City, who is responsible for "provid[ing] appropriate facilities and
necessary supportive personnel for the municipal court," undoubtably shares the responsive
information and documents in the normal course of performing its administrative functions. See
Ala. Code § 12-14-12. After all, the City is responsible for housing the court and any records, as
well as employing the court's supporting staff. Therefore, the City does not meet its discovery
obligations simply by stating court files are not city documents. The City must make a good faith
effort to obtain the court documents. SeaRock, 736 F.2d at 654. And to the extent that the City
responded to a discovery request by claiming that the request seeks documents and information in
possession of the municipal court and thus outside of its possession, custody, or control, Mr.
Carter's motion is hereby GRANTED.

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Second,the City argues that documents related to absent class members are irrelevant prior
to class certification and would be overly burdensome to locate and produce. See City's Resp. 35, ECF No. 182. It asserts that at least of eleven of the requests presently before the Court "are
purely related to potential claims of absent class members, and clearly should not be imposed on
the City, either now or at all." Id. at 5. The Court rejects this notion.
For one, documents or information related to absent class members are not categorically
irrelevant to Mr. Carter's claims. To impose municipal liability under § 1983, Mr. Carter must
prove a government policy or custom on the part of the City. See Hill v. Cundiff, 797 F.3d 948,
977(11th Cir. 2015). The treatment of other JCS probationers is undoubtedly relevant to showing
that policy or custom. Ofcourse, it also bears on the elements of class certification under Rule 23.
(Indeed, this is part of the reasem the Court thought it better to reserve on the išsue of class
certification until after completion of merits discovery.) But at bottom, Mr. Carter's attempt to
hold the City liable under § 1983 makes this information relevant to his merits claim too. And the
City may not refuse Mr. Carter's requests based on a blanket relevance objection.
Moreover, the City has not sufficiently demonstrated that Mr. Carter's requests are overly
burdensome. The party resisting production bears the responsibility ofestablishing undue burden.
Coker v. Duke & Co., Inc., 177 F.R.D. 682,686(M.D. Ala. 1998). "Generally, a party seeking to
avoid discovery on a burdensomeness argument must substantiate that position with detailed
affidavits or other evidence establishing an undue burden." Id. Conclusory statements about the
difficulty of complying with a discovery request or the expected expense are not enough. Id.; see
also Twin City Fire Ins. Co. v. Ford Motor Co., 124 F.R.D. 652(D. Nev. 1989). Instead,"Mlle
resisting party must make a particular and specific demonstration of fact." Coker, 177 F.R.D. at
686.

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Here, the City has made no such showing. The City does attach affidavits to its
supplemental response. City's Suppl. Resp. Ex. 1, ECF No. 211-1; City's Suppl. Resp. Ex. 3,ECF
No. 211-3. But they fail to acknowledge the reduced scope of Mr. Carter's amended requests. Mr.
Carter has reduced the time-frame of his requests from six to two years since the filing of his
motion. Thus,the responsive material is theoretically one-third ofthat originally requested. Joint
Status Report and Proposed Schedule 3, ECF No. 208. Because this change is unacknowledged
by the City's affiants, the Court finds the City's arguments conclusory and largely speculative.
The Court is sensitive to the costs associated with discovery.

But based on the

correspondence between the parties submitted with Mr. Carter's motion, it appears that Mr.
Carter's counsel is willing to make accommodations to the City to attempt to keep costs down,
such'as cross-referencing disdovery received from JCS to limit the City's seardhes. See Pl.'s
Second Mot. Compel Ex. M,ECF No. 171-13. At this time, the City has not met its burden to
show burdensomeness and the Court GRANTS Mr. Carter's motion as to the requests related to
absent class members. The Court agrees that the City is not obligated to create information to
convenience the plaintiff, but the Court expects the City to collaborate with Mr. Carter on
discovery and produce what it has or what it can legally obtain upon demand.
Having addressed the City's two major objections to Mr. Carter's requests, the Court turns
to the remaining objections to requests specifically identified in the City's response and
supplemental response. City's Resp. 3-5, ECF No. 182; City's Suppl. Resp. 3-12, ECF No. 211.
Request 1. In its first request, Mr. Carter asks the City to produce policies and practices
pertaining to electronically stored information ("ESP). See RFP/Interrogatory Responses at 2.
Mr. Carter states that "[i]f these policies are unwritten, list by name, title, and department people
who are responsible for the records relating to the claims in this case." Id. Although Mr. Carter

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is unsatisfied that no policy has been produced, Pl.'s Second Mot. Compel 8, ECF No. 171-1, the
City clarified that it does not have written policies but listed two people responsible for the records
in this case. City's Resp. at 8,ECF No. 182. Accordingly, the City has complied with the request
and the Court DENIES AS MOOT Mr. Carter's motion to compel as to Request 1.
Request 4. Request 4 is actually an interrogatory asking the City to list the "key custodians
for the court, the police, the finance department and the jail." RFP/Interrogatory Responses at 8.
It asks the City to describe "1)their roles within the organization; 2) what relevant ESI they may
have; and 3)the most effective and efficient method to produce relevant ESI." Id. While most of
the City's objections were dealt with above, the City also objects on the grounds that the
interrogatory asks it to determine what is relevant. City's Resp. 8-9,ECF No. 182. This objection
is well taken. "[Mil interrogatory must be specific in order that it need not be'necessary for the
party that is being examined to exercise discretion or judgment in determining what is intended to
be covered by the interrogatory." Webster Motor Car Co. v. Packard Motor Car Co., 16 F.R.D.
350, 351 (D.D.C. 1954). Mr. Carter knows the issues in the case and may not require the City to
determine what is relevant. The City must list the key custodians, but Mr. Carter's motion is
denied as to the rest of the interrogatory. Accordingly, Mr. Carter's motion is GRANTED IN
PART and DENIED IN PART as to Request 4.
Request 5. Request 5 is also an interrogatory. It asks the City to "Mist and describe the
principal form(s) of communication utilized by the key custodians for the court, the finance
department, the police, and the jail." RFP/Interrogatory Responses at 9. It clarifies that "[t]his
should include but not be limited to naming and describing the system(s) and/or device(s) used in
these communications." Id. Although Mr. Carter is unsatisfied, the City maintains it gave a full
response when it stated that communications "were principally through face-to-face

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communications, emails and by telephone and/or cell phone." Id. at 10. The Court agrees and
DENIES AS MOOT Mr. Carter's motion as to Request 5.
Request 6. Like Request 4, Request 6 asks the City exercise discretion or judgment in
determining what is intended to be covered by the request. It asks the City to "Mist and describe
all the reports utilized—or capable of being generated—within the court/finance department/jail
that would contain relevant information regarding the claims in this case and produce a sample
report of each." RFP/Interrogatory Responses at 11. This asks too much of the City. First, it asks
not only for reports utilized, but reports capable of being generated. It is not the City's
responsibility in discovery tò make new documents to help Mr. Carter prove his case.
Additionally, the City may not require the city to determine what is relevant. See Webster Motor
'Car, 16 F.R.D. at 351. Mr. Carter's motion is DENIED as to this request. '
Request 7. Request 7 is an interrogatory that calls for too much discretion and judgment
on the part of the City. It asks,"What are the primary sources of relevant ESI that will assist in
the resolution of the claims and defenses in the case, and who is/are the best person(s) to advise
and assist with collecting it?" RFP/Interrogatory Responses at 7. On its face, this request asks the
city both to determine what ESI is relevant and what ESI will assist in the resolution ofthe claims
and defenses in this case. Like Requests 4 and 6, this request is too unspecific. In his reply brief,
Mr. Carter clarifies that in Request 7 he "seeks the sources of electronically stored information
about persons assigned to JCS during 2009." Pl.'s Reply at 6,ECF No. 186. The Court DENIES
Mr. Carter's motion as to this request, as written. But the request as modified in the reply is proper
when adjusted to the relevant two-year time period and would need to be responded to should Mr.
Carter revise his request.

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Request 9. Request 9 is a request for production seeking "all contracts and any amendments
thereto between The City of Montgomery and JCS," as well as "any correspondence, documents,
minutes or other documents of the City concerning the negotiation, review and approval of those
contracts." RFP/Interrogatory Responses at 14. The City claims it has produced everything
responsive to this request. City's Resp. 10, ECF No. 182; see also City's Suppl. Resp. 4,ECF No.
211. Mr. Carter states he "will pursue the validity ofthat position with the City's deponent. Pl.'s
Reply 6, ECF No. 186. Accordingly, as to this request, Mr. Carter's motion is DENIED AS
MOOT.
Request 13. In Request 13, Mr. Carter seeks production of"any correspondence, emails or
other documents showing communication between any personnel at Montgomery and JCS since
JCS began working in Montgomery's municipal'court in 2009." RFP/Intèrrogatory Reponses at
18-19. The City originally claimed that this request was "burdensome because the emails of JCS
personnel are not fully known." City's Resp. 11, ECF No. 182. In its supplemental response, the
City states that it will comply with the Request 13. City's Suppl. Resp. 5, ECF No. 211. This
request goes directly to the City's involvement in the JCS probation operation. The Court
GRANTS Mr. Carter's motion as to Request 13 and expects the City to make good on its
representation as expeditiously as possible.
Request 14. Request 14 is an interrogatory asking for "the name, address and position with
Montgomery of all personnel, including the magistrates, clerks and any other personnel who had
responsibility with the operation ofthe municipal court since the date ofthe initial JCS contract to
date." RFP/Interrogatory Responses at 20-21. The City provided a list of employees but the
principal dispute with regards to this request is whether the City must provide addresses and phone
numbers. The Court finds that information relevant so that Mr. Carter may subpoena potential

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witnesses or otherwise investigate the case. Mr. Carter's motion to compel as to this interrogatory
is GRANTED. However,because ofthe sensitivity of personal information such as addresses and
phone numbers, such personal information may only be used in connection with this litigation and
shall be placed under seal if filed with the Court.
Request 16. In Request 16, Mr. Carter seeks "any and all forms, including form probation
orders, and other such documents provided to Montgomery by JCS."

RFP/Interrogatory

Responses at 24. The request goes on to list examples offorms, such as "Successful termination,
Unsuccessful termination, Terminated modified, Order of modification, Warrant for arrest,
Warrant dismissal, [] Petition of Revocation, Probation Orders, Notice to Show Cause,
Delinquency reports, [and] Failure to Appear letters." Id. In its supplemental response, the City
'
states that it "has priwided all forms that wer6 regularly used." City's Suppl. Resp. 5, ECF No.
211. Mr. Carter can examine the veracity ofsuch a statement in a deposition. The Court DENIES
AS MOOT Mr. Carter's motion as to this request.
Request 17. Request 17 seeks "copies of all Montgomery court files and documents
concerning all people who were required to report to JCS at any time since JCS began working in
Montgomery's municipal court in 2009." RFP/Interrogatory Responses at 26. The request has
since been modified to include only documents from the two years preceding Mr. Carter's filing
ofthis action. Joint Status Report and Proposed Schedule 3,ECF No.208. For the reasons already
expounded, the City's objections to producing court documents or documents relating to absent
class members are overruled. Additionally, the City's burdensomeness arguments relating to this
request are similarly unavailing.

They are almost entirely speculative and conclusory.

Furthermore, the arguments rely on Mr. Carter's representation from his class certification brief,
estimating that 17,000 people fall within the putative class. See Suppl. Resp. 6, ECF No. 211; see

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also Memo. Support Class Certification 1, ECF No. 117. But Mr. Carter's brief makes clear that
the 17,000 number includes all individuals subjected to the JCS system from when it was first
instituted in Montgomery in 2009 until 2014 when the City terminated its relationship with JCS,
rather than the two-year period at issue under the revised requests. Memo. Support Class
Certification 1, ECF No. 117. Presumably, the number of people now covered by Request 17 is
significantly less than 17,000, and accordingly, the expense required to cull responsive documents
is significantly reduced as well. This change is unaccounted for in the City's briefs and supporting
affidavits. The City has not met its burden to show burdensomeness, and Mr. Carter's motion is
GRANTED as to Request 17.
Request 19. In Request 19, Mr. Carter requests the production of"jail transcripts for people
whose fines and f&s were'commuted' since JCS began working in nintgomery's municipal court
in 2009." RFP/Interrogatory Responses at 30. The City objects, noting that the request "is not
limited to those people who were assigned to JCS, which the Plaintiff purports to be the limit of
its class definition." City's Suppl. Resp. 7, ECF No. 211. It argues that the request is overbroad
in that it seeks information beyond that which is relevant. Id. at 7-8. The Court disagrees. In the
context ofthis case, the "commutine of fines means the conversion of unpaid fines into jail time.
See, e.g., See Pl.'s Second Mot. Compel Ex. M,ECF No. 171-13. The Court finds this information
plainly relevant to Mr. Carter's claims. Furthermore, Mr. Carter's counsel has offered to use the
discovery it received from JCS to make it easier to identify the individuals with commuted
sentences. Id. The Court GRANTS Mr. Carter's motion as to Request 19.
Request 23. Request 23 asks the City to "[p]roduce copies of all orders of modification
where probation periods with JCS were extended, modified or reinstated concerning defendants
who were required to report to JCS." RFP/Interrogatory Responses at 35. The City argues that

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this request is irrelevant because Mr. Carter lacks standing to challenge the allegedly wrongful
extension of probation periods beyond twenty-fdur months. City's Suppl. Resp. 8, ECF No. 211.
But this point is disputed, and the responsive documents may in fact be relevant. Compare City's
Opp'n Class Certification, ECF No. 160, with Pl.'s Reply to City's Opp'n Class Certification 11,
ECF No. 173. The City's objection is overruled. Additionally, the City's burdensomeness
objection is overruled for the same reasons articulated with regards to Request 17, supra. The
Court GRANTS Mr. Carter's motion as to Request 23.
Request 24. Request 24 is an interrogatory asking the City to list all persons placed on
probation with JCS. RFP/Interrogatory Resporises at 35. The City argues not only that this request •
is overly burdensome and disproportionate, but also that Mr. Carter has access to this information
through its pridr discovery with JCS. City's Suppl. Resp. 8-9, ECF No. 211. First, the City has
not met sufficiently shown that the request is unduly burdensome or disproportionate in light of
the change to the scope ofthe requests. Supra pp. 9-10. To the City's second argument,it appears
to the Court based on Mr. Carter's evidentiary submission that he seeks confirmation from the
City's records that the information provided by JCS is correct. Pl.'s Second Mot. Compel Ex. M,
ECF No. 171-13. This is a fair request. Moreover, Mr. Carter has offered to provide a spreadsheet
with the information about JCS probationers in Montgomery garnered from the JCS discovery to
assist in the confirmation process. Pl.'s Second Mot. Compel Ex. M,ECF No. 171-13. The Court
GRANTS Mr. Carter's motion as to this request, and the Court is confident that the parties can
work together to ease any burden on the City.
Request 25a. Request 25a seeks a list of all JCS probationers jailed after being placed on
probation for either a probation violation, failure to obey court order or failure to appear.
RFP/Interrogatory Responses at 37. The City first objects that "the information requested is

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beyond the statue of limitations period in this case." City's Suppl. Resp. 9, ECF No. 211. But the
City has since limited its requests to two years. Joint Status Report and Proposed Schedule 3,ECF
No. 208. The City further objects that the interrogatory is overly burdensome because the
municipal court clerks "do not generally use the code for jail that is available' in its system and
"and there is no way to search for those who are jailed." City's Suppl. Resp. 9, ECF No. 211.
Therefore, the City would have to undertake a manual review to create a list responsive to the
request. Id. While this is attested to in Mr. Nixon's affidavit, Mr. Nixon makes no representations
about how many people may fit the request in light of the change in time-frame. Nor does he
estimate the number of hours it would take to do the review manually. The City states "a
substantial manual review would be requireE to answer the interrogatory, but without a more
detailed affidavit, the Court finds this statement speculative and donclusory. The Court GRANTS
Mr. Carter's motion as to Request 25a.
Request 25b. Request 25b is an interrogatory asking the City to list probationers whose
probation period extended more than two years from their initial conviction date.
RFP/Interrogatory Responses at 38-39. The City's arguments related to standing fail for the
reasons articulated by the Court when addressing Request 23 and its burdensomeness arguments
fail for the same reasons articulated when addressing Request 25a. The Court GRANTS Mr.
Carter's motion as to Request 25b.
Requests 25c, 25d, 25e, and 25f Request 25c asks for names of all probationers found to
be indigent and placed on probation. RFP/Interrogatory Responses at 39. Request 25d asks for
those placed on JCS probation even though they had paid fines and court costs. Id. Request 25e
asks for those placed on JCS probation who had counsel appointed before being jailed. Id. And
Request 25f asks for those placed on JCS probation who had fines or costs added to their JCS

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probation balance from charges that predated the charge which resulted in the probation order. Id.
The City objects to all ofthese as overly burdensome because there is no electronic search capable
of answering the questions. City's Suppl. Resp. 10,ECF No.211. At this time, that objection will
be overruled for the reasons articulated by the Court when addressing the City's burdensomeness
objections with regards to Request 25a. Regarding Request 25e, the City states that it cannot be
answered at all with a file review "because, while it was the general practice ofthe court to provide
access to counsel, that is not necessarily noted or reflected in the file." Id. This is attested to by
Mr. Nixon in his affidavit, City's Suppl. Resp. Ex. 1 1111, ECF No. 211-1, and may be explored
by Mr. Carter in deposition. The Court GRANTS Mr. Carter's motion as to Request 25c, 25d,
and 25f, but DENIES Mr. Carter's motion as to 25e.
Request 25g. Request 25g is.an interrogatory asking the City to list those probathiners who
had warrant fees added to their balance. RFP/Interrogatory Responses at 39. The Court agrees
with the City that this request pertains primarily to Mr. Carter's now-dismissed money-had-andreceived claim. See Order, ECF No. 207. Because there is little relevance to this request, the
Court finds that the burden of the proposed discovery outweighs its likely benefit. The Court
DENIES Mr. Carter's motion as to Request 25g.
Request 27. Request 27 asks for the "municipal ordinances or other authority upon which
[the City] contend[s] the City of Montgomery was authorized to: 1)add warrant fees; 2)add court
costs above those allowed by the state; 3)double fines for those who do not pay on time; or 4)add
fees for the District Attorney." RFP/Interrogatory Responses at 41. Because the City states "[t]hat
information was provided to Plaintiff on October 26, 2018," the motion is DENIED AS MOOT
as to Request 27. City's Suppl. Resp. 11, ECF No. 211.

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Request 31. In Request 31, Mr. Carter asks the City to produce all police department
records and documents relating to individuals assigned to JCS probation. RFP/Interrogatory
Responses at 46. The City argues that such a request is inappropriate because "the information is
actually being sought as to damages." Class Suppl. Resp. 11,ECF No. 211. The Court disagrees.
This information is relevant to demonstrating a policy or custom on the part of the City and may
illuminate the scope, if any, of the City's participation in the alleged JCS probation operation.
Furthermore, the City's statements claiming that this request is burdensome and disproportionate
are conclusory and unsupported. The Court GRANTS Mr. Carter's motion as to Request 31.
Request 33. Request 33 is an interrogatory asking the City to "list those persons given
cornmunity service or some other form of alternative sentence in lieu of fines at Montgomery."
RFP/Interrogatory Responses at 51. The City again argues that the request is unduly burdensome
because there is no electronic search that can be conducted to find the documents responsive to the
request. City's Suppl. Resp. 12, ECF No. 211. Therefore, a cumbersome manual review would
have to be undertaken. Id. But without any detailed evidentiary support taking into account the
change in the scope of Mr. Carter's document requests, these arguments are no more than
conclusory statements about the difficulty of complying with a discovery request. The City fails
to meet its burden, and the Court GRANTS Mr. Carter's motion as to Request 33.
Request 34. In Request 34, Mr. Carter asks the City to "list those persons for whom
warrants were issued following a Petition of Revocation by JCS." RFP/Interrogatory Responses
at 53. The City argues that "the mere fact that a warrant was issued following a Petition for
Revocation of JCS" does not necessarily mean that the warrant was issued in connection with the
revocation petition. City's Suppl. Resp. 12,ECF No. 211. Therefore,the City states it would have
to undertake a manual review to determine whether the revocation was the cause of the issuance

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of the warrant. Id. This burdensomeness argument, however, is supported by mere speculation.
Mr. Nixon, in his affidavit, states that jailing "could have been the result of cases never assigned
to JCS or could be the result of events on the cases assigned to JCS that were in no way related to
that assignment." City's Suppl. Resp. Ex. 1 ¶ 4, ECF No. 211-1. But neither Mr. Nixon nor the
City make any representations about whether this is a common occurrence. Such speculation does
not prove undue burden and Mr. Carter's motion is GRANTED as to Request 34.
Request 36. Request 36 asks the City to produce "copies of all agreements and documents
that relate to the employment,compensation and retention ofBranch Kloess as public defender for
the City of Montgomery." RFP/Interrogatory Responses at 58. The City represents that it has
produced "all contracts with Branch Kloess and has produced the schedules for the public
deferiders." City's Suppl. Resp. 12, ECF No. 12. The Court therefore DENIES AS MOOT Mr.
Carter's motion as to this request.
Request 37. In Request 37, Mr. Carter asks for "all court and jail documents that contain
information relating to Branch Kloess' activities as public defender for the City of Montgomery
since August 3,2013." RFP/Interrogatory Responses at 60. Specifically, Mr. Carter seeks, among
other things, "case action summaries listing Kloess as attorney, all note/recommendations to the
judge, the calendar showing the days he worked, and any and all case files/notes he wrote." Id.
Mr. Carter's motion to compel response to Request 37 is GRANTED as to Mr. Kloess' calendars
(if in the possession, custody, or control of the City), as well as any responsive information that
was available to both the prosecution—the City—and the public defender in these cases.

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For the reasons explained herein, the Court GRANTS IN PART and DENIES IN PART
Mr. Carter's Second Motion to Compel. The Court further hopes that the reasoning articulated in
this order will assist the parties in resolving future discoveries without the need for judicial
intervention.
IT IS SO ORDERED.

Date:

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Royce C. Lamberth
United States District Court

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