Walker v. City of Pocatello et al

Filing 48

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED: Plaintiff's Motion for Rule 37 Sanctions 32 is GRANTED in part and DENIED in part. Plaintiff's Motion to Compel Production of Investigative Materials 40 is GRANTED. The Motion to S tay 47 is GRANTED. Briefing on the motion for summary judgment is stayed until the Court reviews the emails and issues its decision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN WALKER,
Case No. 4:15-cv-00498-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CITY OF POCATELLO, et. al.,
Defendants.

INTRODUCTION
The Court has before it Plaintiff’s Motion for Rule 37 Sanctions (Dkt. 32), and
Plaintiff’s Motion to Compel Production of Investigative Materials (Dkt. 40).
ANALYSIS
1.

Motion for Sanctions
Walker asks the Court to sanction Defendants for failure to comply with the

Court’s earlier order. Walker complains that Defendants did not adequately search for
and provide the Court with emails the Court requested for in camera review. In the
alternative, Walker asks the Court to make Defendants provide evidence that they
searched Bybee and Smith’s computers, and to produce all Bybee emails for in camera
review, including documents with certain Bates numbers.
This dispute stems from Kimberly Bristow’s declaration stating that there is an
email from Bybee to City employees (including Smith) where Bybee admonishes Mayor
MEMORANDUM DECISION AND ORDER - 1

Blad or Chief Marchand. To resolve that dispute, the Court ordered Defendants to
provide the Court with any emails from Bybee to Smith (including emails Smith was cc’d
on) from September 2015 – January 2016, plus documents with specific Bates numbers.
Defendants provided the Court with emails, and the Court conducted its review. The
Court saw no email reflecting what Bristow said in her declaration.
However, since that review, additional emails have come to light, apparently
because of the search of additional computers. Thus, there is really no dispute that
Defendants did not provide the Court with all the emails the Court requested. There also
seems to be no dispute that the City of Pocatello’s servers automatically delete emails
after 30 days, but such emails may be recovered from individual computers if they have
not been manually deleted. The new emails apparently came from subsequent searches of
individual computers. But there has been no search of either Bybee’s or Smith’s
computers.
Rule 37(2) allows the Court to order sanctions for failure to obey a court order.
Sanctions include, but are not limited to, (i) directing that the matters embraced in the
order or other designated facts be taken as established for purposes of the action, as the
prevailing party claims; (ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing designated matters in
evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until
the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi)
rendering a default judgment against the disobedient party; or (vii) treating as contempt

MEMORANDUM DECISION AND ORDER - 2

of court the failure to obey any order except an order to submit to a physical or mental
examination. F.R.C.P. 37(2).
Under these circumstances, the Court believes it should grant Walker’s alternative
request. That is, the Court will order Defendants to search Bybee’s and Smith’s
computers. Then Defendants must provide the Court with all emails found on those
computers which fit the parameters set by the Court in its earlier order for in camera
review. Defendants must also provide the Court with the recently discovered emails
mentioned in the parties’ briefs, including Bates numbers 14875-76, 14886, 14889, and
14892, which were apparently discovered after the Court’s earlier order. Once the Court
reviews all these emails, the Court will determine whether additional sanctions are
appropriate.
2.

Motion to Compel
Walker asks the Court to compel Defendants to produce certain thumbnail images

contained in an investigative file of Marchand.1 Walker wants to show Marchand’s bias
and animosity toward him to support his due process claim. In his deposition, Marchand
stated that he and Lieutenant Peterson went to the major because they heard “Walker was
telling everyone that there was pornography there [on his computer] and we were given
amnesty.” Marchand Depo., p. 34, Dkt. 40-3. Walker contends that these “false”
accusations show bias and animosity toward Walker. To show the accusation is false,

1

In his reply brief, Walker also asks the Court to compel Defendants to produce the entire
investigative file unredacted. The Court will not address this request, since it was not requested in the
original motion or brief.

MEMORANDUM DECISION AND ORDER - 3

Walker wants to show that there was, in fact, pornography on Marchand’s computer.
Further, the thumbnails may be used to impeach Marchand if they are pornographic
because Marchand denied he had pornographic material on his computer during his
deposition. Marchand Depo., p. 29, Dkt. 40-3.
But for Marchand’s testimony that there was no pornographic material on his
computer, the Court would find that the documents already produced regarding the
conclusion and findings of the investigations are enough. However, Marchand has now
placed the question of whether the images are pornographic at issue. This does not mean
this material will necessarily be admissible at trial. But the information is limited and
likely easy to locate, and it is relevant to the plaintiff’s claim and proportional to the
needs of the case considering the factors in Rule 26(b)(1). Plus, the Court is not ordering
Defendants to turn over the entire investigative file. Accordingly, the Court will order
Defendants to turn over the thumbnails.
ORDER
IT IS HEREBY ORDERED:
1. Plaintiff’s Motion for Rule 37 Sanctions (Dkt. 32) is GRANTED in part and
DENIED in part. Defendants must conduct the search and provide the Court
with the emails as explained above. Defendants must conduct the search and
provide the emails to the Court within 21 days of the date of this Order.
2. Plaintiff’s Motion to Compel Production of Investigative Materials (Dkt. 40) is
GRANTED, and Defendants are ordered to turn over the thumbnails.

MEMORANDUM DECISION AND ORDER - 4

3. The Motion to Stay (Dkt. 47) is GRANTED. Briefing on the motion for
summary judgment is stayed until the Court reviews the emails and issues its
decision.

DATED: September 22, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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