Harte et al v. Denning et al

Filing 250

MEMORANDUM AND ORDER granting in part and denying in part 141 Motion for Hearing and denying 176 Motion for Leave to File Surreply. An evidentiary hearing will be held on Tuesday, July 28, 2015 at 1:30 p.m. in Courtroom 223. Signed by Magistrate Judge Gerald L. Rushfelt on 07/13/2015. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ADLYNN K. HARTE, et al.,
Plaintiffs,
v.
THE BOARD OF COMMISSIONERS
OF THE COUNTY OF JOHNSON
COUNTY, KANSAS, et al.,
Defendants.

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) Case No.: 2:13-cv-02586-JWL-GLR
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MEMORANDUM AND ORDER
Plaintiffs’ Amended Motion for Hearing to Address Defendants’ Discovery Failures and
Potential Spoliation of Evidence and Memorandum of Law in Support (ECF 141) asks the Court
to set an evidentiary hearing and to grant one or more “remedies and sanctions for Defendants’
obstructive practices in conducting discovery. . . .” (ECF 141 at 28.) Plaintiffs direct their
motion specifically against the “Johnson County Sheriff’s (JCSO) Defendants.” The Court
understands this reference to include all the defendants, except for the Johnson County, Kansas
Board of Commissioners and Jim Wingo. For the following reasons the Court grants the motion
in part and denies it in part.
Plaintiffs contend that the JCSO defendants have failed to comply with requests for
production of electronically stored information (ESI). They further complain that defendants
have allowed the requested ESI to be destroyed or deleted from their computer systems,
notwithstanding timely notice of the claims of the plaintiffs and the consequent duty to
implement a “litigation hold” to retain it. Defendants respond that they and co-defendant Wingo

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have complied with the requests of Plaintiffs for discovery, including production of available
ESI. Their response concedes, however, that some ESI has been destroyed or deleted, but only
because it was not apparent or evident that it should be retained in anticipation of litigation.
Defendants thus oppose the motion as unjustified by the facts. The motion addresses the alleged
need for the apparently lost ESI and any culpability of the defendants for failing to retain and
produce it.
The amended complaint alleges that defendants entered and searched the home of the
plaintiffs and personally restrained them in custody on April 20, 2012, thereby violating their
constitutional, statutory, and common-law rights. Plaintiffs and defendants appear to agree that
April 17, 2013, if not sooner, was a significant date by which all of them knew or should have
known of the claims and understood that a “litigation hold” should be instigated to preserve any
relevant documents, including ESI. On that date counsel for plaintiffs delivered to Defendants
Board of County Commissioners and Sheriff Frank Denning a notice of the claims. (ECF 1414.) The notice named the Board, the Sheriff, the co-defendant deputy sheriffs, and non-party
Tom Erickson, Public Information Officer, as persons against whom the claims were directed.
The Court will address first the alternative relief sought by the motion. Plaintiffs ask the
Court to “consider appointing an e-discovery expert as a special master to oversee the discovery
process with regard to the JCSO Defendants, or appoint a forensic computer examiner to
examine Defendants’ computer systems for the purpose of locating requested documents or
determining if and when and by whom they were destroyed.” Id, pp. 2, 3. They cite several
cases in which the Court has considered the appointment of a special master:

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In re Wyoming Tight Sands Antitrust Cases, 715 F. Supp. 307 (D. Kan. 1989) involved
“complex issues, numerous parties, and numerous attorneys” and the taking of over 100
depositions. Id at 308. The Court noted that the discovery phase of the case nevertheless had
“proceeded remarkably well and smooth.” Id. The Court declined to appoint a special master.
Among other reasons, it noted, “Furthermore, some of the plaintiffs’ problems with depositions
appear to be simple dissatisfaction with the deponent’s answers.” A similar observation may or
may not apply to the instant case, in which Plaintiffs feel aggrieved by responses with which
they disagree and which may yet be either substantiated or proved false by additional evidence
developed in discovery, with or without the presence of a special master. The history of
litigation, of course, remains one of disparate, inconsistent, and disproved evidence, whether in
the form of discovery responses or testimony at trial. Inconsistencies in evidence, however, do
not necessarily signal dishonesty or a need for an arbiter to make running assessments about the
truth or lack of it throughout the course of discovery.
Smith v. MCI Telecommunications Corp., 1993 WL 142006 (D. Kan. 1993) involved a
class action with 60 telemarketer class members. The Court found complications in that case to
justify appointment of a master. “As litigation of the case progressed, it became apparent to the
court that complex issues of accounting and sophisticated computer operations were central to
the dispute. The sheer magnitude of the data to be analyzed, along with its complexity, had not
only bogged down discovery but threatened the expeditions resolution of the cross claims.” Id at
1. These reasons supported appointment of a special master, not because of disagreements about
the adequacy of discovery responses, but because of a need for expertise not otherwise possessed
by the Court. Neither in Wyoming Tight Sands, supra, nor in Smith does the Court here find
anything sufficiently persuasive to appoint a special master to oversee discovery in this case.
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Plaintiffs do urge the Court to set an evidentiary hearing, however, to afford them “the
opportunity to examine under oath those individuals responsible for locating, identifying and
producing documents, particularly electronically stored information (ESI), for the JCSO
defendants in response to Plaintiffs’ Request for Production.” (ECF 141, p. 2.) The briefing of
the parties, including numerous exhibits, indicates that the JCSO defendants have produced a
substantial amount of ESI in response to requests for production. The motion asserts,
nevertheless, that additional ESI, controlled by the JCSO defendants and Tom Erickson, has been
deleted and not produced. Plaintiffs characterize the destruction and loss as spoliation or
destruction of evidence for which defendants should be sanctioned. They propose, consequently,
an evidentiary hearing to address those matters.
To their respective memoranda both the JCSO defendants and the plaintiffs have attached
an affidavit, apparently of a computer technologist, relating to retention and access of deleted
ESI. Defendants offer the “Affidavit of Paul Wildgen.” (ECF 144-4.) It suggests the possibility
that the ESI in question may be permanently lost by reason of routine retention procedures,
rather than by any deliberate destruction. Plaintiffs, on the other hand, offer the “Affidavit of
Greg Chatten.” (ECF 160-1.) It challenges the adequacy of the search by defendants for deleted
data. It also suggests that a complete “forensic examination” with the use of available forensic
software could indeed retrieve the deleted ESI. Given the contrasting suggestions of these two
affidavits, the Court finds that an evidentiary hearing could aid in determining what further
procedures, if any, should be ordered to recover requested ESI that has not been produced.
Accordingly and for the foregoing reasons the Court sets this case for an evidentiary
hearing on Tuesday, July 28, 2015, at 1:30 p.m. in Courtroom 223. The purpose of the
hearing will be to determine to what extent and with what conditions, if any, further discovery of
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ESI should be pursued and produced by the JCSO Defendants. At the hearing the parties may
offer evidence to determine the following:
1. What additional discovery of ESI, if any, should any of the JCSO defendants be
ordered to produce to Plaintiffs?
2. What specific request(s) for production are involved?
3. What would be the costs for retrieving and producing the additional ESI in question?
4. How should such costs be paid and against whom should they be assessed?
Plaintiffs have suggested the possibility that, by failing to preserve ESI, defendants may
have spoliated it. Evidence developed at the hearing, of course, could be relevant to an issue of
spoliation. In ordering a hearing, however, the Court proposes thereby to determine possibly
remaining issues of discovery, not spoliation. The parties can more appropriately address issues
of spoliation, if any, by specific motion(s) for sanctions. At this point the Court proposes more
simply to determine if additional discovery of ESI should be ordered and, if so, upon what
conditions. Any party may present evidence on that point, but the Court does not propose to
require any party to present evidence. Nor does it propose to compel any person to testify.
With an offering for more briefing, Defendants have filed Johnson County Defendants’
Motion for Leave to File Surreply to Plaintiff’s Reply in Support of Their Motion for Hearing to
Address Defendants’ Discovery Failures and Potential Spoliation of Evidence (ECF 176). The
Court finds nothing of consequence to support this motion. Counsel are aware that surreplies are
not favored and seldom necessary. The Court finds no need for a surreply in this instance.
Accordingly, it denies this motion.

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For the foregoing reasons the Court grants in part and denies in part Plaintiffs’ Amended
Motion for Hearing to Address Defendants’ Discovery Failures and Potential Spoliation of
Evidence. (ECF 141.) The Court sets an evidentiary hearing, as above directed. The Court
denies Johnson County Defendants’ Motion for Leave to File Surreply to Plaintiff’s Reply in
Support of Their Motion for Hearing to Address Defendants’ Discovery Failures and Potential
Spoliation of Evidence (ECF 176).
IT IS SO ORDERED.
Dated at Kansas City, Kansas this 13th day of July, 2015.
/s Gerald L. Rushfelt
GERALD RUSHFELT
UNITED STATES MAGISTRATE JUDGE
United States District Court for the District of Kansas

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