Mayfield et al v. Harvey County Sheriff's Department et al

Filing 104

MEMORANDUM AND ORDER denying 93 Motion to impose sanctions. Signed by Magistrate Judge Kenneth G. Gale on 2/8/17. Mailed to pro se party Kent Mayfield, Tonya Mayfield by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENT MAYFIELD and
TONYA MAYFIELD,

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Plaintiffs, )
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v.
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JIM BETHARDS,
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Defendant. )
______________________________ )

Case No. 14-1307-JTM-KGG

ORDER DENYING MOTION FOR SANCTIONS
Plaintiffs move for sanctions (Doc. 93) pursuant to Fed.R.Civ.P. 37 against
Defendant and the Harvey County Sheriff’s Department for failure to produce a
requested record in discovery. There is no dispute that Defendant attempted to
respond to the request, but failed to produce the record until Plaintiffs made
repeated requests. It is also undisputed that Plaintiffs had a copy of this record
before the lawsuit was filed because it was produced for them pursuant to a Kansas
Open Records Act request.
Sanctions may be adjudged against a party who fails to obey and order or
permit discovery. Fed.R.Civ.P. 37(b)(2). Because the failure in this case was not a
failure of Defendant or his counsel, the motion is DENIED.

The record at issue is an electronic recording of a call with the dispatch
office. The recording is in the possession of the Harvey County Sheriff’s
Department (HCSD). HCSD was a Defendant in this case, represented by the same
counsel who represent Defendant Deputy Berthards, but was dismissed from the
case. (See Doc. 49.) Because HCSD is not a party, and has not been served with a
subpoena to produce documents pursuant to Fed.R.Civ.P. 45, the Court cannot
consider sanctions against it.
The motion for sanctions against Defendant Berthard and his counsel is not,
however, resolved simply on the argument that the recording was in the possession
of HCSD and not Defendant. Defense counsel did not object to requests from
Plaintiffs for HCSD information on the basis that HCSD rather than Defendant had
access to the information. Rather, they accommodated Plaintiff’s requests, thus
commendably helping Plaintiffs avoid the sometimes onerous Rule 45 process, by
representing an ability to obtain records from HCSD.
Defendant also did not object that the document was outside his “control”
within the meaning of Rule 34. A somewhat Keystone Cops-like chase ensued,
however, with Plaintiffs insisting on the production of a recording they already
had1 and defense counsel shuttling between Plaintiffs and HCSD trying to clarify
1

The issue is not completely resolved by fact that the missing recording was
already in the possession of Plaintiffs. The fact that evidence can be obtained from
another source does not relieve a party from producing the evidence. It can be important

whether the recording was among those already produced (it was not) or whether it
could still be produced.
In its response to this motion, Defendant has provided an affidavit from the
Director of Communications for Harvey County, the custodian of the recordings,
stating that in responding to Plaintiffs’ discovery requests he “mistakenly missed
one of the calls that I had found and provided to the Mayfields in 2014.” (Doc. 961.) At present, there is no evidence that this assertion of inadvertence is untrue.
More importantly, though, there is no evidence that either the mistake, or anything
more nefarious, is attributable to either Defendant Berthards or his attorneys.
The only prejudice to Plaintiffs was the time spent in repeatedly requesting
the recording, in addition to some delay in the overall proceeding. Because the
mistake is not shown to have been caused by conduct of Defendant Berthards or
his counsel, the imposition of sanctions is inappropriate. Plaintiff’s Motion to
Impose Sanctions (Doc. 93) is, therefore, DENIED.

to establishing authenticity to obtain a document in the litigation directly from the
custodian. Because the recording has now been produced, though, this is not an issue.
Also, the failure to produce a responsive (and, Plaintiffs may argue, helpful) record
compromises the requestor’s confidence in the completeness of the overall production.
Even so, the Court lacks evidence to conclude that the production was otherwise
incomplete. Plaintiffs are free to develop evidence on that issue for trial, and if the delay
in production itself is deemed probative by the trial judge, may present that evidence to
the jury. The eventual production of the recording does eliminate a claim based on
spoliation, since the evidence was not lost or destroyed.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Impose
Sanctions (Doc. 93) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 8th day of February, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge