Humphrey v. U.S. Department of Justice, Attorney General
Filing
88
MEMORANDUM AND ORDER denying 68 Plaintiff's Motion to Compel; denying 72 Plaintiff's Motion for Leave to Depose Witness. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 9/23/2011. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WALTER HUMPHREY,
Plaintiff,
v.
ERIC H. HOLDER, JR., in his official
capacity as U.S. Attorney General,
Defendant.
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Case No. 10-2153-CM
MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion to compel a discovery response
(Doc. 68) and motion for leave to depose a witness (Doc. 72). For the reasons set forth
below, the motions shall be DENIED.
Background
Plaintiff is African-American and employed by the Federal Bureau of Prisons at the
U.S. Penitentiary in Leavenworth, Kansas.
Highly summarized, he alleges that his
immediate supervisor, Carl Crawford, intentionally engaged in racial discrimination and
retaliation. More specifically, plaintiff asserts that his supervisor (1) treated him “in a
manner disparate from that accorded white employees,” (2) denied him training
opportunities, (3) changed his work schedule, (4) denied him certain posts and shifts, (5)
assigned him to less desirable posts and shifts, (6) denied him the opportunity to work as
acting captain, (7) falsely charged him with being absent without leave, (8) gave him low
performance ratings, (9) denied leave plaintiff was entitled to take, and (1) falsely stated that
plaintiff performed his duties incompetently.
Motion to Compel a Discovery Response
Plaintiff took the deposition of his former supervisor, Carl Crawford, on May 18, 2011
in Kansas City, Kansas.1 Mr. Crawford was unrepresented during the deposition and, when
questioned about deposition exhibits 2 and 5, refused to answer until plaintiff’s counsel
explained the relevance of the two exhibits to the case. Plaintiff’s counsel declined
Crawford’s invitation to explain the relevance of the two exhibits and now moves to compel
answers to deposition questions concerning exhibits 2 and 5.2
Because Crawford was not initially served with the motion to compel, the court
mailed a copy to him and ordered him to show cause why the motion should not be granted.
1
Mr. Crawford is currently employed by the Department of Homeland Security.
2
Exhibit 2 is a November 28, 2007 letter setting forth proposed adverse
employment action against Crawford for misconduct concerning the opening of a locked
file cabinet and refusal to sign a quarterly roster. On its face, the letter does not have any
apparent direct connection to plaintiff’s claims in this case.
Exhibit 5 is a 2007 affidavit by Crawford concerning his own time and attendance
practices and his approach to scheduling of work shifts. Mr. Crawford answered
deposition questions concerning Exhibit 5 but raised a relevance objection to a question
concerning an earlier incident when he worked at the U.S. Penitentiary at Terra Haute,
Indiana. Again, on the surface, there is no apparent direct relationship between the
investigation at Terra Haute and plaintiff’s claims of discrimination at Leavenworth.
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(Doc. 80). Crawford responded with a detailed explanation why exhibits 2 and 5 have
nothing to do with discrimination or plaintiff’s claims and also criticized plaintiff’s counsel
for a lack of professionalism. (Doc. 86). Plaintiff does not challenge Crawford’s explanation
of exhibits 2 and 5 but argues that Crawford’s initial refusal to answer based on a relevance
objection was procedurally improper.
The court agrees that Crawford’s refusal to answer based on a relevance objection was
improper. A person may refuse to answer only (1) when necessary to preserve a privilege,
(2) to enforce a limitation ordered by the court, or (3) to present a motion under Rule
30(d)(3). Fed. R. Civ. P. 30(c)(2). However, Crawford was unrepresented during the
deposition and neither attorney in attendance cited Rule 30(c)(2) to the witness.3 More
importantly, Crawford has now explained the two exhibits in greater detail. Although
plaintiff asserts that the exhibits are relevant to show that Crawford “considered himself
above the law,” the court is not persuaded that reopening the deposition for additional
questions concerning the two exhibits is warranted. See, Fed. R. Civ. P. 26(b)(2)(C) (court
may limit discovery where information is duplicative or the burden and expense outweighs
its likely benefit).4 Accordingly, plaintiff’s motion to compel Crawford to answer deposition
questions shall be DENIED.
3
Plaintiff’s counsel did advise Crawford that the court could order him to answer
the questions and impose sanctions.
4
Plaintiff’s motion would have been unnecessary had Crawford provided his
explanation at the deposition.
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Motion for Leave to Depose a Witness
May 18, 2011 was the deadline for the completion of discovery.5 Plaintiff moves for
leave to reopen discovery to take a discovery deposition of Kevin Johnson, a Bureau of
Prison employee who worked as Executive Assistant to the Warden at Leavenworth
Penitentiary during the time relevant to plaintiff’s claims. For the reasons set forth below,
the motion shall be DENIED.
Plaintiff determined that Mr. Johnson was a witness in 2010 and disclosed him as a
potential witness to defendant on August 31, 2010.6 Notwithstanding this early identification
of Mr. Johnson, plaintiff did not seek to take Johnson’s discovery deposition during the time
allocated for discovery. The reason given for not taking Mr. Johnson’s discovery deposition
was plaintiff’s belief that Johnson was “very cooperative” and “counsel elected not to spend
his client’s money deposing him.” (Doc. 72, p. 2). Plaintiff also asserts that Johnson agreed
to provide an affidavit consistent with his discussion with plaintiff’s counsel. (Doc. 72. p.2).
Plaintiff seeks leave to take the discovery deposition of Mr. Johnson, arguing that Mr.
5
The parties’ joint motion to extend the discovery deadline to May 18, 2011 was
granted on June 14, 2011. (Doc. 65).
6
Plaintiff begins his attack on defense counsel with the incorrect legal assertion that
defendant was obligated to disclose Mr. Johnson as a witness “likely to have discoverable
information” under Fed. R. Civ. P. 26(a)(1)(a)(i). (Doc. 72, p. 4). However, plaintiff
ignores the following operative language in the rule: “to support its claims or defenses.”
Because defendant is not relying on Mr. Johnson “to support its claims or defenses,”
defendant was under no obligation to list Mr. Johnson in its initial disclosures. Plaintiff’s
misstatement of Rule 26(a)(1)(a)(i) as a grounds for attacking defense counsel is
troubling.
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Johnson is no longer willing to provide an affidavit and this refusal raises the issue of
“whether there has been an obstruction of justice.” (Doc. 72, p. 4). Plaintiff suggests that
the U.S. Attorney should open an investigation and that “a good starting point” would be an
interview of Bureau of Prisons attorney Natalie Holick. (Doc. 72, p. 5). Plaintiff also argues
that, because he is no longer certain what Mr. Johnson’s testimony will be, he should be
allowed to conduct a discovery deposition.
The court is not persuaded that there is any evidence of “an obstruction of justice” by
the United States Attorney’s office or the Bureau of Prisons. To the contrary, Mr. Johnson
has filed an affidavit directly challenging assertions in plaintiff’s motion. For example,
plaintiff’s opening brief alleges that Johnson was in Crawford and plaintiff’s “chain of
command”and that Johnson observed Crawford’s interaction with subordinates “nearly every
day on the job.” However, Johnson’s affidavit explains that he was the Executive Assistant
to the Warden at Leavenworth and was not in plaintiff or Crawford’s supervisory chain of
command. Johnson also states that although he observed Crawford and Humphrey interact,
he has “no direct knowledge of any of the allegations in Humphrey’s ... complaint.” Plaintiff
also asserts that Johnson formed the opinion that Crawford was racially prejudiced against
African American officers and agreed to provide an affidavit consistent with this opinion.
Johnson denies that he agreed to provide an affidavit expressing such an opinion.
Plaintiff’s counsel explains in his reply brief that his client has confirmed that Johnson
was not in plaintiff or Crawford’s “chain of command.” (Doc. 84, p. 3). Accordingly, this
representation in plaintiff’s opening brief (Doc. 72, p. 2) is untrue. Plaintiff’s counsel also
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provides clarification concerning Johnson’s agreement to provide an affidavit, explaining that
Johnson expressed a willingness to provide an affidavit or statement if it would mean he
would not have to appear at trial. This “clarification” reveals that Johnson was willing to
provide an affidavit but that the content of the affidavit had yet to be determined. Plaintiff’s
original representations concerning Johnson’s agreement to provide an affidavit are
incomplete and less than candid.7
Finally, plaintiff’s counsel argues in his reply brief that he “has not accused anyone
of obstruction of justice or an ethical breach.” However, plaintiff’s opening brief quoted the
statutory elements of obstructing justice (18 U.S.C. § 1512(b)) and asserted that “the
involvement of an attorney would constitute a serious ethical breach.” Counsel then
proceeded to argue that the Assistant U.S. Attorney representing defendant and the Bureau
of Prisons attorney were the attorneys with knowledge of Johnson’s importance as a witness
and that a criminal investigation should begin with the attorneys. Contrary to plaintiff’s
denial, his opening brief clearly argued that a crime had been committed and implied that the
two attorneys representing the government had participated in the misconduct.
Given the misrepresentations in plaintiff’s briefs, the court is unwilling to grant
7
Mr. Johnson apparently remains willing to appear as a witness for trial.
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plaintiff’s untimely request for leave to conduct a discovery deposition of Mr. Johnson.8
Accordingly, his motion shall be DENIED.
IT IS THEREFORE ORDERED that plaintiff’s motion to compel a discovery
response (Doc. 68) and motion for leave to depose a witness (Doc. 72) are DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 23rd day of September 2011.
S/ Karen M. Humphreys
___________________________
KAREN M. HUMPHREYS
United States Magistrate Judge
8
This is not the first incident of discovery misconduct in this case by plaintiff’s
counsel. Plaintiff’s counsel was informally admonished for disrupting plaintiff’s
deposition and suggesting answers to his client. The misconduct ceased after an informal
conference with the court and defendant’s videotaping of the remainder of the deposition.
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