Handy et al v. Board of County Commissioners for the County of Jefferson et al

Filing 85

ORDER GRANTING IN PART AND DENYING IN PART 76 Plaintiff's Second Motion to Compel Discovery. The Motion is GRANTED IN PART to the extent that Defendant Fisher shall supplement her response to Interrogatory No. 14 in accordance with Fed. R. Civ. P. 33(d) by either (a) ascertaining the answer to No. 14 by her review of the applicable records she mentioned, or, assuming the burden of deriving or ascertaining the answer will be substantially the same for either party, (b) specifying th e records (by bates number) that must be reviewed and giving Plaintiffs a reasonable opportunity to examine those records to the extent not already produced. See Fed. R. Civ. P. 33(d). Defendant Fisher's supplemental response shall be serv ed on Plaintiffs no later than November 25, 2020.The Motion is DENIED IN PART to the extent that no additional response is required by Defendants to Interrogatory Nos. 2, 3, 4, and 5, and Requests for Production Nos. 15, 16, and 23.3. Finally, the Motion is DENIED IN PART to the extent it seeks leave to request the additional information discussed above. SO ORDERED by Magistrate Judge S. Kato Crews on 11/14/2019. (skclc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
U.S. Magistrate Judge S. Kato Crews

Civil Action No. 18-cv-00789-RBJ-SKC
WYATT T. HANDY, JR.,
ASHLEE M. HANDY,
Plaintiffs,
v.
TERA L. FISHER, AND
BRANDON H. JOHNSON
Defendants.
______________________________________________________________________
ORDER RE: PLAINTIFFS’ SECOND MOTION TO COMPEL [#76]
______________________________________________________________________
This order address pro se Plaintiffs Wyatt and Ashlee Handy’s Second Motion to
Compel Discovery (“Motion”) [#76]. 1 The Motion was referred to this Court. The Court has
considered the Motion, Defendants’ response [#79], and Plaintiffs’ reply [#82]. 2 No
hearing is necessary to resolve the Motion.
A. FACTS PERTINENT TO THE MOTION
The Court summarizes the facts using Judge Jackson’s description from his prior
order [#47]: Plaintiffs were driving along Highway 285 to visit a friend in Conifer, Colorado

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The Court uses “[#__]” to refer to applicable documents from the CM/ECF docket.

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Because Plaintiffs are unrepresented, the Court has construed their pleadings liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

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in the early morning of April 14, 2016 when the alleged incident occurred. Three people
were in the vehicle: Mrs. Handy, who is white, was driving; Mr. Handy, who is black, was
the front seat passenger; and an unidentified white female passenger sat in the backseat
behind Mrs. Handy. At approximately 12:43 a.m. Plaintiffs stopped in the parking lot of
the 24-hour Kum and Go convenience store in Conifer to reprogram their GPS
navigational unit. As Plaintiffs pulled into the Kum and Go located off Highway 285, they
noticed Deputy Fisher’s (“Fisher”) patrol vehicle parked in the convenience store’s parking
lot. Mr. Handy alleges that he made eye contact with Fisher as Plaintiffs’ vehicle pulled
into the Kum and Go parking lot.
Within one minute of parking, Plaintiffs allege that Fisher repositioned her patrol
car behind Plaintiffs’ vehicle and activated her emergency lights. Because Plaintiffs’ car
faced the Kum and Go building, Plaintiffs were boxed in and unable to move their car.
Apparently, Fisher radioed for backup because within “seconds,” several additional
officers arrived. Deputy Johnson (“Johnson”) was one of those officers. With backup in
place and their weapons drawn, Fisher approached the driver’s side of the vehicle and
Johnson approached the passenger’s side. Fisher asked Mrs. Handy for her license,
insurance, and registration. Mrs. Handy complied with the request, and then she
explained that she pulled over to reprogram her GPS. Fisher then asked Mr. Handy for
his identification “in a hostile manner.” Mr. Handy initially refused to produce identification,
but he eventually complied after Defendants made clear that he would be arrested if he
did not produce identification. Defendants did not request identification from the backseat

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passenger. Defendants released Plaintiffs after verifying there were no outstanding
warrants pending against them.
Plaintiffs brought this action alleging two 42 U.S.C. § 1983 claims against
Defendants. First, Plaintiffs alleged an unlawful seizure in violation of the Fourth
Amendment. Second, they asserted that Defendants racially profiled Mr. Handy in
violation of the Equal Protection Clause of the Fourteenth Amendment. The Court
dismissed Plaintiffs’ Equal Protection Clause claim for failure to state a claim upon which
relief can be granted and dismissed all official capacity claims. [#47.] Only Plaintiffs’ claim
for unlawful seizure in violation of the Fourth Amendment remains against the Defendants
in their individual capacities.
B. ANALYSIS
The written discovery requests at issue include: Interrogatory Nos. 2, 3, 4, 5, and
14, to Fisher; and Requests for Production of Documents 15, 16, and 23, to Fisher and
Johnson. They are addressed, in turn, below.
1.

Legal Standards
The scope of discovery in federal court is broad:
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) (emphasis added). Rule 26 permits discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense, while the proportional
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needs of the case serve as guardrails for further reasonably tailoring the scope of
discovery. Id. The Court may limit the scope of discovery to protect a party from undue
burden or expense. Fed. R. Civ. P. 26(c)(1).
Rule 37 of the Federal Rules of Civil Procedure provides that “[a] party seeking
discovery may move for an order compelling . . . production” if the other party fails to
produce requested information. Fed. R. Civ. P. 37(a)(3)(B). The moving party bears the
burden of proof. EchoStar Commc’ns. Corp. v. News Corp., 180 F.R.D. 391, 394 (D. Colo.
1998). The moving party must prove the opposing party’s responses are incomplete.
Daiflon Inc. v. Allied Chem. Corp., 534 F.2d 221, 227 (10th Cir. 1976); Equal Rights Ctr.
v. Post Props., 246 F.R.D. 29, 32 (D.D.C. 2007). Additionally, when the relevance of a
discovery request is not apparent on the face of the request, the proponent of that
discovery bears the burden of making an initial showing of relevance. See Thompson v.
Jiffy Lube Int'l, Inc., No. 05–1203–WEB, 2007 WL 608343, at *8 n.20 (D. Kan. Feb. 22,
2007).
2.

Interrogatory Nos. 2 and 3
These interrogatories ask Fisher to:
•

No. 2: Please explain where and how Plaintiffs’ car was positioned when it
was parked.

•

No. 3: Please explain where and how your car was positioned when you
pulled up to stop Plaintiffs’ car.

Fisher raised objections to these interrogatories and then answered them “subject
to and without waiving” her objections. In response to No. 2, she answered: “When I saw
Plaintiffs' vehicle it was parked nose-in facing the empty building at 30403 Kings Valley

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Drive, in Conifer, Colorado. Plaintiffs' vehicle was on the north side of Kum and Go,
closest to Kings Valley Drive, in a spot towards the end of the parking row.” [#76-2 at p.3.]
In response to No. 3, she answered:
Plaintiffs' vehicle was already parked when I contacted them, so I did not
stop them or pull them over. I parked my Sheriff’s Office vehicle at an angle
towards the back passenger-side bumper so that Plaintiffs' vehicle was
closer to Kings Valley Drive than my vehicle. I was trying to shine my
vehicle's bright lights into Plaintiffs' vehicle. As a result, I was about one and
a half car-lengths away from Plaintiffs' vehicle.
[#76-2 at p.4.]
Plaintiffs argue that these responses are incomplete because Plaintiffs are
“requesting to know the specific storefront, where Defendants are alleging the stop took
place in front of, be identified by its unit number.” The Court disagrees. Neither of these
interrogatories request identification of a specific store front by unit number or otherwise.
Instead, they simply ask Fisher to explain how Plaintiffs’ and Fishers’ vehicles were
positioned during the stop. The Court finds that Fisher’s responses to these requests are
complete. The Court will not require any additional response from Fisher to these
interrogatories.
3.

Interrogatory Nos. 4 and 5
These interrogatories ask Fisher to:
•

No. 4: Please explain what was going through your mind when you decided
to stop the Plaintiffs' car, regarding the crime you believe Plaintiffs had
committed or were committing.

•

No. 5: Please explain if it was something you saw Plaintiffs doing inside the
car or was it something you saw them doing outside the car, was it just the
car, or all the above, that aroused your suspicions to believe that a crime
had been committed or was being committed.

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Fisher again raised objections but answered the requests “subject to and without
waiving” her objections. In response to Interrogatory No. 4, she answered:
I observed a vehicle (Plaintiffs' vehicle) parked late at night in front of an
unoccupied building that had been the location of criminal activity in the past
and was in a high crime area for Conifer, Colorado. I considered the contact
a voluntary contact and had contacted vehicles there every time I observed
them while on shift and was not otherwise engaged in a call. I remember
debating about finishing my lunch before contacting the vehicle but decided
to contact them as I felt it was part of my job.
[#76-2 at p.4.] In response to Interrogatory No. 5, she answered:
Please see my response to Interrogatory Number 4, above. As I stated, I
observed a vehicle (Plaintiffs' vehicle) parked late at night in front of an
unoccupied building that had been the location of criminal activity in the past
and was in a high crime area for Conifer, Colorado. Although I noticed the
vehicle's brake lights come on, it was dark enough that I was not able to tell
whether the vehicle was occupied or if the brake lights had come on
because of the use of a remote key fob, how many people might or might
not be inside, or their positions in the vehicle, or if it was instead parked and
empty, which is why I parked in such a way that I could try to use the bright
headlights on my Sheriff’s Office vehicle to see into the parked vehicle.
Even using my bright headlights, I was not able to determine whether the
vehicle was occupied from my Sheriff’s Office vehicle. I considered the
contact a voluntary contact and had contacted vehicles there every time I
observed them while on shift and was not otherwise engaged in a call. It
was my practice to contact any vehicle I observed at that location when I
was on-duty and not otherwise engaged with another call.
[#76-2 at p.5.]
The Court sees nothing incomplete in these responses. These interrogatories ask
Fisher to explain her thought processes and reasons for stopping to investigate Plaintiffs.
She provided those explanations. The Court will not require any additional response from
Fisher to Interrogatory Nos. 4 and 5.

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4.

Interrogatory No. 14
This request asks Fisher to: “Please explain how many times you (sic) been

dispatched to the vacant building or submitted reports related to criminal activities or
crimes being committed at the vacant building, prior to the traffic stop at issue here.
Submit any and all documents that support your answer to this question.”3 Fisher
responded: “I do not recall whether I had previously been dispatched to or submitted
reports regarding contacts at 30430 Kings Valley Drive.” Plaintiffs argue that this
response is evasive. The Court agrees.
In Defendants’ response opposing the Motion, Fisher argues that when you couple
her response to Interrogatory No. 14 with her responses to Interrogatory Nos. 4 and 15,
she has effectively provided a complete response to No. 14. But Fisher’s response to No.
14 does not direct Plaintiffs to any other interrogatory responses that are responsive to
No. 14. Instead, her response to No. 14 is a simple, “I do not recall.” See Witt v. GC Servs.
Ltd. P'ship, 307 F.R.D. 554, 561 (D. Colo. 2014) (“An evasive or incomplete discovery
response will be treated as a failure to answer or respond.”). Fisher is correct that Fed.

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Interrogatory No. 14 contains a request for production of documents in addition to the
interrogatory request. A document request coupled with an interrogatory is considered a
distinct subpart. See IOSTAR Corp. v. Stuart, 2008 WL 1924209, at *1 (D. Utah Apr. 25,
2008) (discussing that requests within interrogatories that also ask for identification of
witnesses and documents constitute three separate subparts); see also Banks v. Office
of Senate Sergeant–at–Arms, 222 F.R.D. 7, 10 (D.D.C. 2004) (“[A] demand for
information about a certain event and for the documents about it should be counted as
two separate interrogatories.”) Thus, No. 14 contains two distinct subparts because the
document request is treated as a separate interrogatory. The Court notes that Plaintiffs
have already served their limit of 30 interrogatories. Therefore, Defendants need not
respond to the distinct subpart (document request) in No. 14.

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R. Civ. P. 33(d) does not require her to produce business records that assist with
ascertaining an interrogatory answer, but Rule 33(d) does provide that if the answer to an
interrogatory may be determined by examining business records, then the answering
party has two options: (1) she can either specifically identify those records and make them
available to the opposing party in lieu of examining those records herself, or (2) she can
examine the records herself to ascertain the answer to an interrogatory. See generally
Fed. R. Civ. P. 33(d). From Fisher’s arguments, it appears there are indeed records that
exist from which an answer to No. 14 may be ascertained; however, she neither reviewed
those records herself to ascertain the answer, nor directed Plaintiffs to the specific records
from which they could derive the answer under Rule 33(d).
As a result, the Court will compel Fisher to supplement her response to No. 14 by
either reviewing the available records herself to ascertain the answer or specifying and
producing the records to Plaintiffs from which they may ascertain the answer, as provided
by Rule 33(d).
5.

Request for Production Nos. 15 and 16
These requests ask Defendants to produce:
•

No. 15: Any and all documents related to Defendant Fisher's Personnel and
Internal Affairs files and records.

•

No. 16: Any and all documents related to Defendant Johnson's Personnel
and Internal Affairs files and records.

Defendants raised objections but responded “subject to and without waiving” their
objections. Their response was to direct Plaintiffs to Defendants’ respective Internal
Affairs (“IA”) files produced in response to Request for Production No. 8. These requests

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(Nos. 15 and 16) were also the subject of a prior discovery dispute where this Court
ordered Defendants to supplement their responses to these requests as indicated on the
record of those proceedings. [#65.]
Plaintiffs contend that Defendants only supplemented their responses by providing
three IA Reports out of a total of 14 that were identified. Defendants explain (and indicate
they explained to Plaintiffs previously) that the other 11 reports identified by Plaintiffs are
not IA Reports, but rather, are CAD summaries. CAD summaries document locations to
which dispatchers send deputies or locations to which deputies air they have responded;
they are unrelated to IA Reports, according to Defendants.
The Court has no reason to disbelieve Defendants that CAD summaries differ from
IA Reports. And Plaintiffs have made no compelling arguments to the contrary. Indeed,
Plaintiffs seem to acknowledge the distinction between these records by arguing (in
relation to Interrogatory No. 13) that “CAD/Dispatch records” should exist of Fisher’s
claimed historic contacts with other vehicles parked at the subject location. [See #76 at
p.4.] For these reasons, the Court finds that Defendants have completely responded to
these requests and will not compel any additional responses.
6.

Request for Production No. 23
This request asks the Defendants to produce: “Any and all documents that

describe the units in detail, that Defendants Fisher and Johnson were assigned on the
night in question, to include, but not limited to, maintenance and service records of all the
equipment on the vehicles, e.g., in-car camera systems, etc.” Defendants objected to this
request as “unduly broad, overly burdensome, and seeks information that is not relevant

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to any claim or defense.” Instead of resting on these well-founded objections, however,
Defendants went on to quizzically respond that they would “supplement this response
when this information becomes available.” As a result, Plaintiffs complain that Defendants
have failed to supplement this response as Defendants said they would.
Despite Defendants’ confusing response to No. 23, the Court nonetheless sustains
their objections. The Court agrees that No. 23 seeks information that is not relevant to
any claims and defenses in the case, and therefore, it exceeds the proportional needs of
the case. The nature, condition, and service history of the vehicles driven by Defendants
to the scene bear no logical relationship to Plaintiffs’ Fourth Amendment Unreasonable
Seizure Claim, which alleges an unlawful investigative stop. 4 Therefore, despite
Defendants’ ill-founded representation to Plaintiffs to the contrary, the Court will not
compel Defendants to respond to this request.
7.

Plaintiffs’ Request for Additional Written Discovery
In the Motion, Plaintiffs appear to request leave to serve additional written

discovery. [#76 at p.4 (twice describing “[a]dditional information Plaintiffs would like to
seek from Defendant Fisher, based on information provided” in her responses to
Interrogatory Nos. 2-5).]
The Scheduling Order in this case allowed Plaintiffs to serve a total of 30
interrogatories. [#57 at p.5.] Plaintiffs used their allotment of 30 interrogatories in their first

4

In their Reply, Plaintiffs argue No. 23 is relevant to show whether there were cameras
in Defendants’ vehicles. But No. 23 does not narrowly ask about cameras. Instead, it
broadly asks about “[a]ny and all documents that describe the units in detail . . . to include,
but not limited to, maintenance and service records of all the equipment on the vehicles .
. . .”
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set of interrogatories served on Defendants, serving 18 on Fisher and 12 on Johnson.
[#76-1; #76-2.] They also used their full allotment of 25 requests for production. [#57 at
p.6; #76-4.]. Thus, allowing Plaintiffs to serve additional written discovery would require
a modification to the limits established by the Scheduling Order.
In their discretion, courts may modify a scheduling order when a movant shows
good cause for the modification. See Fed. R. Civ. P. 16(b)(4). Rather than focusing on
bad faith of the movant or prejudice to the opposing party, the “good cause” inquiry
focuses on the diligence of the party seeking amendment. Gorsuch, Ltd., B.C. v. Wells
Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014); Colo. Visionary Acad. v.
Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
“[W]hatever may be said for the virtues of discovery and the liberality of the federal
rules, . . . there comes at some point a reasonable limit against indiscriminately hurling
interrogatories at every conceivable detail and fact which may relate to a case.” Grynberg
v. Total, S.A., No. 03–cv–01280–WYD–BNB, 2006 WL 1186836, at *6 (D. Colo. May 3,
2006) (quoting Hilt v. SFC, Inc., 170 F.R.D. 182, 186–87 (D.Kan.1997)). “The discovery
rules provide no absolute, unharnessed right to find out every conceivable, relevant fact
that opposing litigants know . . . .” Id.
First, the Court notes that Plaintiffs seek additional discovery requests “based on
information provided” by Fisher in her previous discovery responses. In other words,
answers she provided lead Plaintiffs to have more questions based on her answers. The
Court already allowed Plaintiffs more than the presumptive number of 25 interrogatories
when issuing the Scheduling Order. This was in consideration of Plaintiffs’ pro se status

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and Mr. Handy’s representation that Plaintiffs were not able to take depositions. The
problem for Plaintiffs is that they chose to serve their full allotment of interrogatories and
document requests with their first set of written discovery served on Defendants, rather
than holding back some of their allotted number for follow up requests. While Plaintiffs
are not lawyers, they remain held to the same standard as counsel. See Shell v. Am.
Family Rights Ass'n, 899 F. Supp. 2d 1035, 1044 (D. Colo. 2012) (“[P]ro se status does
not relieve a party of the duty to comply with the various rules and procedures governing
litigants and counsel or the requirements of the substantive law, and in these regards, the
Court must apply the same standard to counsel licensed to practice law and to a pro se
party.”). The discovery rules require “counsel in any given case to exercise professional
judgment and determine the priorities of discovery.” Grynberg, 2006 WL 1186836, at *6.
The Court does not find Plaintiffs have established good cause as a result.
Further, one point of “additional information” Plaintiffs seek is “a photo of the
location in question, pointing out in the photo, where Plaintiffs are alleged to (sic) been
parked and the position of our vehicle and their vehicles.” [#76 at p.4.] As discussed
above, Fisher has already provided a description of her recollection of how and where the
respective vehicles were positioned at the time of her investigative stop. And Plaintiffs
attached a photo of the location as Exhibit 3 to the Motion. [#76-3.] As discussed above,
Plaintiffs asked Fisher to explain the positioning of the respective vehicles during the
investigative stop, and she provided a complete explanation. If Plaintiffs wanted Fisher to
provide her explanation in reference to a specific photo, they could have made that
request within their allotted number of written discovery requests. The additional

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information they now seek is the variety of discovery which seeks to discern “every
conceivable detail and fact which may relate to a case,” which further demonstrates the
lack of good cause supporting a modification of the Scheduling Order. Id.
Likewise, the other point of “additional information” Plaintiffs seek is the
“CAD/Dispatch Notes, etc. of all [Fisher’s] contacts with people at the location in
question.” The Court does not find good cause for allowing these additional requests
because the information sought is not relevant or proportional to the needs of the case.
The only remaining claim in this case is Plaintiffs’ Fourth Amendment claim for
unreasonable seizure. Plaintiffs allege Fisher conducted an unlawful investigative stop.
These stops are constitutional if the officer has a reasonable suspicion supported by
articulable facts that the detainees are involved in criminal activity, even if the officer lacks
the probable cause necessary for an arrest. See Terry v. Ohio, 392 U.S. 1, 26-27 (1968);
Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). Records of all of Fisher’s contacts
with other people at the subject location is not relevant or proportional to the claims or
defenses in this case regarding the lawfulness of Defendants’ detention and investigation
of these Plaintiffs. Grynberg, 2006 WL 1186836, at *6 (“The discovery rules provide no
absolute, unharnessed right to find out every conceivable, relevant fact that opposing
litigants know . . . .”).
C. CONCLUSION
In summary, the Court ORDERS as follows:
1. The Motion [#76] is GRANTED IN PART: Defendant Fisher shall supplement her
response to Interrogatory No. 14 in accordance with Fed. R. Civ. P. 33(d) by either

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(a) ascertaining the answer to No. 14 by her review of the applicable records she
mentioned, or, assuming the burden of deriving or ascertaining the answer will be
substantially the same for either party, (b) specifying the records (by bates number)
that must be reviewed and giving Plaintiffs a reasonable opportunity to examine
those records to the extent not already produced. See Fed. R. Civ. P. 33(d).
Defendant Fisher’s supplemental response shall be served on Plaintiffs no later
than November 25, 2020.
2. The Motion [#76] is DENIED IN PART: No additional response is required by
Defendants to Interrogatory Nos. 2, 3, 4, and 5, and Requests for Production Nos.
15, 16, and 23.
3. The Motion is DENIED to the extent it seeks leave to request the “additional
information” discussed above.

DATED: November 14, 2019
BY THE COURT:

________________________________
S. Kato Crews
U.S. Magistrate Judge

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