Sawatzky v. United States Postal Service, The

Filing 57

ORDER granting 49 Motion to Compel by Magistrate Judge Gordon P. Gallagher on 3/27/2012.(ggall, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
U.S. Magistrate Judge Gordon P. Gallagher

Civil Case No.: 11-cv-03182-REB-GPG
TIMOTHY SAWATZKY,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
______________________________________________________________________
ORDER REGARDING PLAINTIFF’S MOTION
TO COMPEL (Document 49)
______________________________________________________________________

Plaintiff moves to compel Defendant to supplement its discovery disclosures and
responses with regard to some additional surveillance which was conducted in this matter. For
the following reasons, Plaintiff’s motion is GRANTED.

Plaintiff alleges that Defendant has engaged in a course of surveillance of Plaintiff’s
activities and that this surveillance occurred after the formal conclusion of discovery as set forth
in the Court’s Scheduling Order. To be clear, there are two periods of potential surveillance.

Discovery has been produced with regard to the initial period of surveillance. This Order
addresses any surveillance which occurred after the initial surveillance, including but not limited
to any surveillance which occurred in January, 2013.

Plaintiff, in its interrogatories (Interrogatory 9) and its requests for production (Request
3) clearly demand all information relating to surveillance. On February 1, 2013, apparently in
follow-up to a telephone call discussing the same, Plaintiff wrote a letter to Defendant
demanding production of new surveillance information. Receiving no new information, Plaintiff
filed the instant motion.

Defendant, in its Response to Plaintiff's Motion for Protective Order (Document 54)
asserts that the Postal Service did conduct three days of surveillance in January, 2013.
Defendant's position is that Defense Counsel did not receive the surveillance information until
March 8, 2013 and needs time to review the information prior to its release. Defense Counsel
proposes to release the information on March 29, 2013. Defense Counsel also argues that it need
not produce the evidence as it may be used for impeachment.

It is clear to the Court that additional surveillance of Plaintiff was conducted by agents
acting at the behest of the Defense. No evidence has been provided to show whether that
surveillance was conducted at the behest of Defense Counsel or whether Defendant engaged in
the additional surveillance on its own. The Court determines that this evidence would fall within
that which must be disclosed pursuant to Federal Rule of Civil Procedure 26.

Defense Counsel was made aware, at least in general terms, of the possible existence of
this new surveillance in early February, 2013. It is unreasonable to claim that nothing can be
provided to the Plaintiff prior to March 29, 2013. As of early February if not before, Defendant
had a duty to supplement its disclosures pursuant to Federal Rule of Civil Procedure 26(e).

Therefore, the Court ORDERS that Plaintiff’s motion is GRANTED:
Defendant, no later than the close of business on March 29, 2013, must provide the following
information and must supplement its disclosure if additional information becomes available:

a.
b.
c.

All information requested in Plaintiff's interrogatory 9.
All items requested in Plaintiff's request for production 3.
Any tangible items such as tapes, videos, or other electronic media regarding
surveillance.

Both parties have moved for costs with regard to the preparation and filing of this group
of motions and related pleadings. The Court Orders that such costs are appropriate and should
be paid. However, the Court further finds that the relative costs of these motions balance out and
therefore ultimately declines to order costs with regard to either Document 48 and related filings
or with regard to Document 49 and related filings.

Dated March 27th, 2013.
BY THE COURT:

s/ Gordon P. Gallagher
__________________________
Gordon P. Gallagher
U.S. Magistrate Judge