Marchand v. Simonson et al

Filing 64

ORDER Regarding Request for Special Hearing: See attached Order. The Court will consider 53 Plaintiff's Request for Special Hearing if he submits the affidavit described in the Order no later than August 28, 2012. Signed by Judge Charles S. Haight, Jr on August 14, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
GREGG MARCHAND,
Plaintiff,
v.

3:11-CV-348(CSH)

ERIK SIMONSON, CITY OF
WILLIMANTIC, TOWN OF
WINDHAM,
Defendants.

ORDER ON REQUEST FOR SPECIAL HEARING
HAIGHT, Senior District Judge:
Plaintiff Gregg Marchand has filed a Request for Special Hearing [Doc. 53]. He seeks a
hearing as the result of a discovery dispute between himself and Defendants. In that Request and
two filings in its support [Docs. 60, 63], Plaintiff asserts that Defendants must possess items that he
refers to as a “firing report” (or a “full and complete record of all taser activations”) and “associated
video clips.” He further asserts that a forensic scientist, Robert Sanderson, can testify to the fact that
such items should exist and should be available as evidence. Defendants have filed an Objection to
that Request [Doc. 57], asserting that no such items are in their possession apart from a video already
provided to Plaintiff.
In pre-trial discovery proceedings, no party can be ordered to produce documents or objects
which that party does not possess or control. No discovery order or hearing is appropriate unless and
until Plaintiff makes a sufficient showing that the Court should not accept Defendants’ assertion that
no such items exist that have not been provided to Plaintiff. The burden lies on Plaintiff to show

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probable cause to believe that such items exist and are in Defendants’ possession and control. See
Moore v. McMullen, 152 F.3d 927, *1 (9th Cir. 1998) [Table, text at 1998 WL 416105] (party seeking
discovery has the burden to show that the evidence it seeks exists); United States v. Int’l Union of
Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (party seeking
production of documents bears the burden of showing that the opposing party has control over such
documents).
Consequently, the Court will consider the matter further if and when Plaintiff files a detailed
affidavit from Mr. Sanderson, or an equivalent expert, setting forth his reasons for believing that
such items exist and could be produced by Defendants. Any such affidavit shall be filed no later than
August 28, 2012. If such an expert’s affidavit is submitted, Defendants may respond to it within a
week after the affidavit is filed, and the Court will then decide whether a hearing shall be held. If
no such affidavit is filed by Plaintiff, there will be no occasion for any hearing on the subject.

SO ORDERED.
Dated: New Haven, Connecticut
August 14, 2012
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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