Waterman v. Cherokee County Jail et al
Filing
138
MEMORANDUM AND ORDER granting in part and denying in part 118 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 8/31/2020. Mailed to pro se party Brian Michael Waterman by regular mail. (df)
Case 5:18-cv-03092-JWB-KGG Document 138 Filed 08/31/20 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN MICHAEL WATERMAN,
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Plaintiff,
vs.
DAVID GROVES, et al.,
Defendants.
Case No. 18-3092-JWB-KGG
MEMORANDUM & ORDER
GRANTING IN PART AND DENYING IN PART
MOTION FOR PROTECTIVE ORDER
Plaintiff, who is a prisoner in the Sedgwick County Jail, brings this civil
rights action pro se against certain Defendants associated with the Cherokee
County Jail, where he is (and was previously) incarcerated. Plaintiff has filed a
“Motion for Protective Order on Discovery” requesting certain video recordings be
returned to him. (See Doc. 118.) For the reasons set forth below, the motion is
GRANTED in part and DENIED in part as more fully set forth below.
FACTUAL BACKGROUND
Plaintiff’s two consolidated cases (18-3135 and 18-3092 (lead case)) were
filed by Plaintiff, pro se, in 2018 and consolidated in October of that year. The
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Complaints allege violations by persons connected with the Cherokee County Jail,
in which Plaintiff was confined pending a criminal trial. The litigation has, thus
far, consisted of a never-ending series of motions, including nine motions filed by
Plaintiff in approximately the past 40 days.
In regard to the present motion, Plaintiff contends that Defendants “stole”
certain video recordings taken by the “booking area cameras” showing that
“excessive force” was used on him. (Doc. 118, at 1.) Plaintiff contends the videos
will be used for his appeal on Count I (which was previously dismissed by District
Judge Carlos Murguia when the case was assigned to him). (Id.) Plaintiff also
intends to use the video recordings for impeachment of Defendants’ witnesses.
(Id.) Plaintiff alleges that the theft of this evidence was allowed by “both federal
judges” and that these judges “are solely responsible for the recovery of those
booking area cameras… .” (Id.) Plaintiff indicates that the “District Judges[’]
remedy for the defendants stealing my evidence, is that I can easily get all my
evidence back at Discovery.” (Id.)
Defendants deny that they stole the videos at issue and contend Plaintiff’s
allegations are “baseless and harassing.” (Doc. 127, at 2.) Defendants state that
the videos relate to Count I of Plaintiff’s Complaint, which was “dismissed,
without any reference to a video (Case No. 18-3135, Doc. 122).” (Id., at 1-2.)
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ANALYSIS
Plaintiff brings the present motion pursuant to Fed.R.Civ.P. 26, wich
controls the issuance of protective orders. Subsection (c) of the rule states that
[a] party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending – or as an alternative on matters
relating to a deposition, in the court for the district where
the deposition will be taken. The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or
the allocation of expenses, for the disclosure or
discovery;
(C) prescribing a discovery method other than the
one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to
certain matters;
(E) designating the persons who may be present
while the discovery is conducted;
(F) requiring that a deposition be sealed and
opened only on court order;
(G) requiring that a trade secret or other
confidential research, development, or commercial
information not be revealed or be revealed only in
a specified way; and
(H) requiring that the parties simultaneously file
specified documents or information in sealed
envelopes, to be opened as the court directs.
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Fed.R.Civ.P. 26(c). The Rule also provides that “[i]f a motion for a protective
order is wholly or partly denied, the court may, on just terms, order that any party
or person provide or permit discovery.” (Id.)
If ruling on a request for a Rule 26(c) protective order, “[t]he court has broad
discretion to decide when a protective order is appropriate and what degree of
protection is required.” RX Savings, LLC v. Douglas Besch, 19-2439-DDC, 2020
WL 5094686, at *4 (D. Kan. Aug. 28, 2020) (citation omitted). The party seeking
a protective order has the burden to demonstrate good cause. (Id.)
Defendants argue that it is unclear “what Plaintiff is asking for; it seems that
he wants an order ‘protecting’ certain videos that are part of the court file but no
longer relevant.” (Doc. 127, at 2.) Defendants continue that if Plaintiff is actually
seeking a Rule 26 protective order, he has not established “good cause” to do so.
(Id.) According to Defendants,
[i]t is not clear what is being protected, but a strained
reading of Plaintiff’s motion might suggest that he is
asking for an order the allegedly stolen videos be
preserved. That is not the purpose of the protective
order. The purpose of a protective order is to protect a
party from annoyance, embarrassment, oppression, or
undue burden or expense. Those concerns are not
present here.
(Id.)
The Court finds that it does not require a “strained reading” to determine
what Plaintiff is requesting. Plaintiff is clearly seeking the return of specific video
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recordings he contends were taken by Defendants. (See generally Doc. 118.)
Granted, while this is not the intended use for Rule 26(c), the Court finds that
Plaintiff’s underlying request is specific and within the Court’s power to
determine. The Court will not disregard the motion simply because Plaintiff cited
or relied on an incorrect Federal Rule in his motion.
That stated, Defendants indicate that they have “already produced videos
related to Count I of Case No. 18-CV-3135.” (Doc. 127, at 2.) According to
Defendants,
[t]hose videos were attached to Defendants’ motion to
dismiss, provided to Plaintiff, and were not considered in
the Court’s dismissal of Plaintiff’s meritless excessive
force claim. In any event, Defendants will preserve and
produce any videos in their possession that are properly
requested and are within the scope of discovery.
Plaintiff’s motion for a protective order is improper,
unnecessary, and should be denied.
(Id.; see also Case No. 18-3135, Doc. 101, notice that video recordings were filed
conventionally.) Plaintiff replies that “it does not matter if the [underlying] count
was dismissed,” because the video recordings belonged to him. (Doc. 134.)
As stated above, Defendants have specifically indicated they did not steal
any video recordings. They have also stated that the videos at issue were used as an
exhibit to their dispositive motion and provided to Plaintiff, which is corroborated
by the case docket in No. 18-3135. Defendants have also specifically indicated,
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however, that they “will preserve and produce any videos in their possession that
are properly requested within the scope of discovery.” (Doc. 127, at 2.)
As such, the Court directs Plaintiff to its text order entered last week in this
case (Doc. 133, entered 8/25/2020) informing Plaintiff that he is “is permitted,
without an order from this court, to issue Requests for Production of Documents
(Rule 34), Requests for Admission (Rule 36) and Interrogatories (Rule 33) to the
party defendants. Court permission is not required to issue discovery to the
Defendants.” As such, Plaintiff is free to request from Defendants, via
Fed.R.Civ.P. 34, any video recordings in Defendants’ possession, custody, or
control. Discovery will be allowed as to
any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the
case, considering the importance of the issues at state in
the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed.R.Civ.P. 26(b).
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Protective Order
on Discovery (Doc. 118) is GRANTED in part and DENIED in part as more
fully set forth herein.
IT IS SO ORDERED.
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Dated at Wichita, Kansas, on this 31st day of August, 2020.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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