Thurmond et al v. Byrd et al

Filing 92

ORDER denying 77 Motion for Order; denying 83 Motion to Compel; granting 87 Motion to Compel. Signed by Magistrate Judge Beth Deere on 1/20/09. (bkp)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION S A M EDWARD THURMOND, SR. V. K A R L BYRD, et al. No. 4:08CV01792-BD DEFENDANTS P L A IN T IF F S

ORDER P la in tif f has filed a motion for order (docket entry #77) and two motions to compel ( # 8 3 and #87). For the following reasons, Plaintiff's motion for order (#77) and his first m o tio n to compel (#83) are DENIED. Plaintiff's second motion to compel (#87) will be GRANTED. In the motion for order (#77) and the January 7, 2009 motion to compel (#83), P la in tif f requests that Defendants provide him with copies of video surveillance tapes f r o m certain cells within the Faulkner County Detention Facility ("FCDF") from August 1 1 , 2008, until August 18, 2008. Plaintiff states that he attempted to obtain the su rv e illa n c e videos from Defendants through discovery, but Defendants informed him th a t the videos were no longer available. Defendants have responded to Plaintiff's motions. In their response, Defendants e x p la in why the surveillance videos are no longer available for the dates Plaintiff re q u e ste d . Based upon Defendants' explanation, it appears that the video footage was not e ra se d or deleted in bad faith or in response to the filing of this lawsuit. Rather, the re c o rd in g systems used by the FCDF regularly "rolls over," recording over previously

re c o rd e d footage, based on the limited storage capacity of the hard drive of the system. Because Defendants cannot produce evidence that no longer exists, Plaintiff's motion for o rd e r (#77) and his motion to compel (#83) are DENIED. In his motion to compel filed January 13, 2009 (#87), Plaintiff requests that D e f en d a n ts respond to outstanding discovery requests, including interrogatories and re q u e sts for admissions. Based upon Defendants' response, it appears that Defendants h a v e responded to Plaintiff's requests for production. However, Defendants do not state w h e th e r they have responded to Plaintiff's interrogatories and requests for admissions. Defendants are ordered to respond to any outstanding discovery within ten days of the d a te of this order and to file their responses with the Court. If Defendants have p re v io u s ly responded to all pending discovery, they should so notify the Court within ten d a ys of this order. Plaintiff's motion to compel (#87) is granted, this 20th day of January, 2009.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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