Ajibade et al v. Harris et al
ORDER granting in part and denying in part 82 Motion to Compel; granting 83 Motion to Compel. The Court Orders that defendant pay Plaintiffs' "reasonable expenses incurred in making their motion to compel, "including attorney f ees." Defendant Folsome is Ordered to serve his initial disclosures and his responses to plaintiffs' interrogatories and requests for production within 10 days from the date of this Order is served. Signed by Magistrate Judge G. R. Smith on 1/10/17. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AJIBADE, et al.,
JOHN WILCHER, in his official )
capacity as Chatham County
Sheriff, et al. ,
This case involves civil claims arising from Mathew Ajibade’s death
while in the custody of the Chatham County, Georgia Sheriff. See doc. 21
(Amended Complaint). Before the Court are two discovery motions
brought by the plaintiffs. Docs. 82 & 83. Because the Court can decide
the matter on the briefs, plaintiffs’ request for oral argument, doc. 82 at
17, is DENIED .
The Savannah-Chatham Metropolitan Police arrested Ajibade and
placed him into the custody of the Chatham County Sherriff’s
Department at the Chatham County Detention Center (CCDC). 1 Doc. 21
¶ 2. During CCDC intake a “scuffle” broke out between Ajibade and
corrections officers; they subdued and restrained him.
While restrained, defendant Jason Kenny tased him.
Id. ¶¶ 39-44.
Id. ¶ 54. After an
indeterminate period of restraint, CDCC employees placed Ajibade in a
holding cell, and found him dead about two hours later. Id. ¶¶ 65 & 67.
Plaintiffs raise federal ( i.e. 42 U.S.C. § 1983) and state law ( i.e. wrongful
death and assault and battery) tort claims. See id. at 10-25.
A. Motion to Compel Sheriff Wilcher
The plaintiffs’ dispute with Sheriff Wilcher concerns data recorded
in the Sheriff’s inmate management system, “Phoenix.” Doc. 82 at 1.
They complain that he has not produced all of the information on Ajibade
recorded in Phoenix.
See doc. 90 at 9-10. They also object that the
Sheriff supplied an “empty-headed” designee to testify during a (Fed. R.
Civ. P. 30(b)(6)) deposition about it.
See doc. 82 at 15. Finally, they
want costs for bringing their motion, Rule 30(b)(6) deposition costs, and
sanctions. See doc. 82 at 17; doc. 90 at 11.
For purposes of this Order only, the Court accepts the Complaint’s allegations as
1. Phoenix Data
Plaintiffs argue that the information Phoenix contains is
important, both to their case-in-chief and to rebut defense testimony.
See, e.g. , doc. 82 at 5-6. Wilcher summarily dismisses plaintiffs’ motion
as “without merit,” doc. 88 at 1, but does not dispute the Phoenix data’s
relevance -- his response brief attached some of the very records that the
plaintiffs sought to compel. See id. at 3, 6. Plaintiffs’ reply discloses that
the Sheriff produced still more information five days after his response
was filed -- specifically, he produced “audit logs” reflecting access to
Ajibade’s Phoenix data. Doc. 90 at 7. Since the Sheriff clearly had
discoverable information that he did not produce until after plaintiffs
moved to compel, their motion is hardly “without merit.”
To the extent that his response discusses the Phoenix data at all,
the Sheriff attempts to minimize its importance by claiming that
Ajibade’s “Phoenix sheet” “contains no substantive information.” Doc.
88 at 3. Even assuming that the significance of the information affects
its discoverability, the Sheriff’s response ignores plaintiffs’ argument
that the existence of the record itself is probative.
See doc. 82 at 5
(existence of Phoenix record would contradict nurse’s testimony); see
also doc. 90-2 at 37 (Sheriff’s counsel referring to “very clear” testimony
by deputies that no Phoenix record for Ajibade existed).
The only additional excuse for failing to produce the Phoenix data
the Sheriff offers is that this case “is voluminous not only in papers,
videos and other documents produced but in the number of witnesses
and lawyers.” Doc. 88 at 3. That response is unavailing. The Sheriff
does not contend that the Phoenix data was somehow “lost” in the
system. He does not argue that the Phoenix data would have been
produced, but a search of the system was delayed by production of
information deemed more significant. Even if he made such an
argument it is belied by the record -- the “audit logs” appear to show that
the system was searched for Ajibade’s name 8 times since plaintiffs
served their requests for production. Compare doc. 82-6 at 10 (requests
served on June 30, 2016), with doc. 90-1 at 1 (showing 8 searches for
Ajibade’s name between July 8 and October 20, 2016). As plaintiffs say
in their brief: “This is not how discovery is supposed to work.” Doc. 90
Since it is clear that the Sheriff’s response to plaintiffs’ document
request was incomplete, and remains incomplete in important respects,
the motion to compel is GRANTED . Within 14 days of the date that this
Order is served, Sheriff Wilcher shall disclose any and all information
pertaining to Ajibade stored in the Phoenix system by producing copies
of that information or permitting an inspection by plaintiffs. If the
Sheriff chooses to produce copies, they must reflect the information “in a
form or forms in which it is ordinarily maintained or in a reasonably
usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). 2 The additional
information that plaintiffs request, i.e. how the information would have
appeared to deputies on the night of Ajibade’s death, identification of any
users shown by audit logs to have accessed Ajibade’s records, and any
additional information necessary to “make sense” of the audit logs, doc.
82 at 16-17, may be provided by any means agreed to by the parties.
Plaintiffs argue that they should be able to specify production of the Phoenix
information in its “native” format because “they asked for it and the Sheriff has not
shown compelling reasons why he cannot produce the information in the format
requested.” Doc. 90 at 9-10. Plaintiffs’ requests for production of documents do not,
however, specify any format for production of electronically stored information, see
doc. 82-6 at 2-3, and the parties’ Fed. R. Civ. P. 26(f) report states that “[t]he parties
did not discuss issues relating to the format for production of electronically stored
information,” doc. 75 at 11. In the absence of any express request or agreement that
the information would be produced in a particular format, the Sheriff must produce
the information according to the requirements of Fed. R. Civ. P. 34, or as the parties
may agree. See Fed. R. Civ. P. 34(b)(2)(E)(ii) (“ If a request does not specify a form for
producing electronically stored information, a party must produce it in a form or
forms in which it is ordinarily maintained or in a reasonably usable form of forms.”)
(emphasis added);Rule 34(b)(2)(E) (allowing stipulation of procedure for producing
documents or electronically stored information).
This may include providing the Phoenix information in the format
plaintiffs request in their motion, providing the information as a
supplement to the Sheriff’s initial discovery responses, or through
additional deposition testimony, as offered in the Sheriff’s response,
doc. 88 at 3.
2. Additional Testimony
Plaintiffs also object to the designation and testimony of Travis
Shuff, who was the Sheriff’s Rule 30(b)(6) designee to testify about
See doc. 82 at 2-3, 15. They complain that he was not
adequately prepared. Id. at 15. The Sheriff responds that although he
was not prepared to testify about every relevant aspect of Phoenix and its
use, the parties’ agreed that his testimony would be limited, and that he
(or another designee) will supplement that testimony at future
depositions. Doc. 88 at 2-3. Plaintiffs reject that contention, although
they concede that “depositions remain outstanding[, and c]ounsel on
both sides are cooperating on a schedule.” Doc. 90 at 8. See id. at 8-9.
Given that both parties agree that the Rule 30(b)(6) depositions
will continue and the Sheriff has offered to allow plaintiffs to retake any
depositions to elicit testimony on the contents of the Phoenix record, see
doc. 88 at 2-3, plaintiffs’ request for an order compelling the Sheriff to
“produce any necessary witness to testify about the newly-produced
data” (doc. 82 at 17) is moot. Accordingly, plaintiffs’ motion to compel
the testimony of such a witness or witnesses is DENIED . If the Sheriff
fails to make good on his offer, however, or if the witnesses produced are
insufficiently prepared, plaintiffs may renew their motion.
3. Fees and Sanctions
Payment of expenses (including attorney’s fees), typically, is
mandatory when, “after giving an opportunity to be heard,” courts grant
motions to compel. Fed. R. Civ. P. 37(a)(5)(A). Only if (1) “the movant
filed the motion before attempting in good faith to obtain the . . .
discovery without court action;” (2) the failure to respond was justified;
or (3) “other circumstances make an award of expenses unjust, may a
court decline to award expenses to a prevailing party. Id. None of those
exceptions apply here, and the Sheriff had his chance to be heard.
Consequently, the Court ORDERS that he pay plaintiffs’ “reasonable
expenses incurred in making” their motion to compel 3 , “including
Although plaintiffs’ motion to order additional depositions was rendered moot by
the Sheriff’s offer to submit to the additional depositions plaintiffs seek, there is no
evidence that such an offer was communicated to plaintiffs prior to their motion. If
the Sheriff’s offer had not mooted plaintiffs’ request, it would have been granted.
attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). The parties shall meet and
attempt resolution of this sub-issue within 14 days of the date this Order
is served, short of which the Court will resolve it (in which case, plaintiffs
must then file an itemized list of expenses and fees so the Court can
evaluate their reasonableness and issue an expense award).
Plaintiffs also seek to recover costs that they incurred for Shuff’s
deposition. Doc. 82 at 17. Plaintiffs’ notice sought testimony on “[t]he
Phoenix inmate management system, its contents, capabilities, and usual
practices for operation.” Doc. 82-8 at 3. The transcript of Shuff’s
deposition shows that he was not evasive and he was able to answer
plaintiffs’ counsel’s questions about Phoenix, see generally doc. 90-2;
including general questions about its contents, see id. at 12 (“[Phoenix]
tracks inmates’ movement into the facility, their incarcerations, any
actions inside the jail all the way up to the departure.”), 17 (explaining
that Phoenix logs searches and alterations to the data it contains); 17-18
(explaining the system contains “defendant information, charge
information, arrest history, incarceration history, [and] warrants,” and
information about inmates’ mental health), & 21 (testifying that Phoenix
does not store use-of-force information).
That testimony shows that
Shuff was prepared to testify, at least to some extent, about “the
contents” of Phoenix.
Plaintiffs’ argument that Shuff cannot have been adequately
prepared because he was not asked to search Phoenix for Ajibade’s
records is misplaced. See doc. 82 at 9-10, 15. Rule 30(b)(6) requires that
the notice of deposition “describe with reasonable particularly the
matters for examination.” Fed. R. Civ. P. 30(b)(6). Plaintiffs’ notice of
deposition only sought testimony on Phoenix’s contents generally, which
Shuff was prepared to, and did, give. It failed to task the deponent with
searching Phoenix for Ajibade’s records.
Rule 30(b)(6) does not require “absolute perfection in preparation,”
but only “a good faith effort . . . to find out the relevant facts . ” Wilson v.
Lakner , 228 F.R.D. 524, 528 (D. Md. 2005). When it appears that a
“designee is unable to adequately respond to relevant questions on listed
subjects, then the responding [organization] has a duty to timely
designate additional, supplemental witnesses as substitute deponents.”
QBE Ins. Corp. v. Jorda Enters., Inc. , 277 F.R.D. 676, 690 (S.D. Fla.
2012) (citations omitted). That’s just what the Sheriff offers here. Doc.
80 at 2-3.
While it is clear that discovery in this case has not proceeded
smoothly, Shuff was not so unprepared that his appearance was
tantamount to no appearance at all. See Resolution Tr. Corp. v. S. Union
Co. , 985 F.2d 196, 197 (5th Cir. 1993) (“If [the 30(b)(6) designee] is not
knowledgeable about relevant facts, and the principal has failed to
designate an available, knowledgeable and readily identifiable witness,
then the appearance is, for all practical purposes, no appearance at all.”);
Wilson , 228 F.R.D. at 530 (explaining sanctions for failure to present
adequate 30(b)(6) designee depend on “whether there have been good
faith efforts to prepare, so that if a witness has rendered substantial
testimony concerning the subject areas of their designations sanctions
might well not be in order”) (internal quotes and cite omitted).
Accordingly, plaintiffs’ request to recover their “costs and attorney fees
associated with the deposition of Travis Shuff,” doc. 82 at 17, is
B. Motion to Compel Paul Folsome
Defendant Paul Folsome, proceeding pro se , has failed to comply
with his initial-disclosure obligations or respond to plaintiffs’
interrogatories and requests for production of documents.
See doc. 83.
Plaintiffs moved to compel his disclosures and responses on October 13,
2016. Id. He had until October 31, 2016 to oppose that motion. S.D. Ga.
L.R. Civ. 7.5 (requiring response to motion within 14 days). Since he did
not respond, the motion is deemed unopposed. Id. (“Failure to respond
within the applicable time period shall indicate there is no opposition to a
motion.”) Accordingly, the plaintiffs’ motion, doc. 83, is GRANTED .
Defendant Folsome is ORDERED to serve his initial disclosures and his
responses to plaintiffs’ interrogatories and requests for production
within 10 days from the date that this Order is served on him.
To summarize, plaintiffs’ Motion to Compel Production of
Documents, Deposition Testimony, and for Sanctions (doc. 82) is
GRANTED in part and DENIED in part. Since it was not required to
decide the motion, their request for oral argument ( id. at 17) is
DENIED . Plaintiffs’ Motion to Compel Paul Folsome to Comply with
Discovery Obligations (doc. 83) is GRANTED .
SO ORDERED, this 10th day of January, 2017.
LTNIIED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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