Clark v. Reneer et al

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 12/28/2018 denying 17 Motion for Extension of Time to Complete Discovery. Dispositive motions and Daubert motions are due by 1/28/2019. See Order for specifics. cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION 1:17-CV-00184-GNS-HBB
DYLEAN CLARK

PLAINTIFF

VS.
CHRIS RENEER
BUTLER COUNTY SHERIFF’S DEPT.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before the Court is the Plaintiff’s motion to amend the scheduling order to extend
discovery and pretrial deadlines (DN 17). The Defendants have responded in opposition at DN 18
and Plaintiff has not filed a reply.
Nature of the Case
Plaintiff originally filed this action in state court. On November 13, 2017 the Defendants
removed the action to this Court. Plaintiff is the administrator of the estate of Randy Clark. Her
complaint alleges that Defendant Chris Reneer fatally shot Clark. She further alleges that Reneer
was an off-duty Deputy Sheriff with the Butler County Sheriff’s Department and that “Reneer’s
actions violated both state and federal statutory civil protections of Randy Clark” (DN 1-1, p. 3).
On January 4, 2018 the Court entered the scheduling order (DN 9). The order established
a fact-discovery deadline of December 3, 2018. The scheduling order also set a telephonic status
conference on December 10, 2018 following the close of discovery.

The conference was

conducted as scheduled, and Plaintiff’s attorney advised the Court that he was still awaiting
information from the Kentucky State Police and wished to conduct one or more depositions of
KSP representatives before deposing fact witnesses in the case. Defendants noted that the

discovery deadline had passed and opposed any further discovery. The undersigned directed the
Plaintiff to file a motion demonstrating good cause to extend the discovery deadline (DN 19).
Plaintiff’s Motion
Plaintiff states that she sent an open-records request to the KSP on May 26, 2017 for the
agency’s investigative file on the shooting. In a conversation with a KSP representative on October
18, 2017 Plaintiff was informed that the matter was still under investigation and KSP could not
produce the file until the investigation concluded. KSP provided a portion of the investigative file
on January 9, 2018 which listed audio recordings related to the investigation, but no recordings
were included. These were recordings of Reneer and three witnesses.
On June 20, 2018 Plaintiff made a request to Defendants for all audio recordings listed in
the KSP investigative file. Defendants responded that they had produced everything they had from
the KSP and suggested a follow-up open records request to the KSP. Plaintiff sent the follow-up
request on July 27, 2018. On September 17, 2018 Plaintiff received copies of audio recordings
from the Defendants. These recordings were of two of the witnesses, but did not include recordings
of Reneer or Bruce West, who was driving the vehicle in which Clark was an occupant at the time
of the incident. By letter dated September 24, 2018 the KSP advised Defendants’ counsel that it
could not locate any recordings. (Defendants shared this letter with Plaintiff by way of an e-mail
dated October 5, 2018 (DN 18-2)). Plaintiff’s suspicion is that the KSP has either lost the
recordings of Reneer and West or, more egregiously, is concealing them.
Plaintiff desires to take discovery depositions from the KSP to explore the status of the
“lost” recordings. Following this, Plaintiff wishes to take the discovery deposition of Reneer and
the other witnesses. She asks that the discovery deadline be extended for these purposes, as well
as related pretrial deadlines.

Defendants’ Response
Defendants do not contest Plaintiff’s chronology of her efforts to obtain the KSP
recordings. Defendants do contend, however, that this chronology demonstrates a lack of good
cause for extending the deadlines. They note that they have encountered difficulty in obtaining
discovery from the Plaintiff in a timely manner and have had to seek the Court’s intervention.
They note that Plaintiff sought the KSP recordings for over a year but chose not to take depositions
in the interim, including those of the two witnesses for whom she has recordings. Defendants also
question why Plaintiff waited until after the discovery deadline closed to request an extension,
even though she knew two months in advance that the KSP claimed not to have any recordings.
Defendants argue these facts demonstrate a lack of good cause for extension of the discovery
deadline.
Discussion
Fed. R. Civ. P. 16(b)(4) states that a schedule “may be modified only for good cause and
with the judge’s consent.” “’The primary measure of [Civil] Rule 16’s “good cause” standard is
the moving party’s diligence in attempting to meet the case management order’s requirements,’
though courts may also consider prejudice to the nonmoving party.” Smith v. Holston Med. Grp.,
P.C., 595 F. App’x 474, 478 (6th Cir. 2014) (quoting Inge v. Rock Fin. Corp., 281 F.3d 613, 625
(6th Cir. 2002)). The Court must first find that the moving party proceeded diligently before
considering whether the nonmoving party is prejudiced, and only then to ascertain if there are any
additional reasons to deny the motion. Id. at 479. In other words, to demonstrate good cause a
party must show that despite their diligence the timetable could not reasonably have been met.
Woodcock v. Kentucky Dept. of Corr., No. 5:12-CV-00135-GNS-LLK, 2016 WL 3676768, *2
(W.D. Ky. July 6, 2016).

When amendment of a scheduling order is to allow additional time for discovery, the Court
considers several factors. These include (1) when the moving party learned of the issue that is the
subject of discovery; (2) how the discovery would affect the ruling below [i.e. the outcome at the
trial court]; (3) the length of the discovery period; (4) whether the moving party was dilatory; and
(5) whether the adverse party was responsive to prior discovery requests. Dowling v. Cleveland
Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010).
Plaintiff contends the investigation documents produced by the KSP indicate that there are,
or were, recorded statements or interviews from Defendant Reneer and eyewitness driver West,
both unquestionably important witnesses. Plaintiff has been attempting to obtain the recordings,
but has been advised by KSP, after some delay, that they cannot be located. Plaintiff indicates that
she needs to explore this question before she is fully satisfied. She has been delaying taking
depositions until she has verified that the recordings are truly unavailable, as they could provide
important cross-examination or impeachment information. However, as Defendants point out and
the Court noted in Pogue v. Northwestern Mut. Life Ins. Co., No. 3:14-CV-598-CRS-CHL, 20165
U.S. Dist. LEXIS 71156 (W.D. Ky. June 1, 2016), the focus of the inquiry is not on why the party
needs the requested discovery. The focus as to the “reason for the delay” must be the reason the
party did not request the extension before the expiration of the discovery deadline. “This factor
relates to the reason for the delay in seeking an extension, not the reason that the moving party
believes an extension is needed.” Id. at *14 (emphasis in original).
Under the good cause analysis’s first factor, the Court looks to when the Plaintiff learned
of the issue which is the subject of discovery. Under the third factor the Court considers the length
of the discovery period. Under the fourth factor the Court considers whether the Plaintiff was
dilatory. All three of these factors weigh against the Plaintiff. Plaintiff has known of the apparent

existence of the recordings since January 9, 2018. From that date she had almost eleven months
to pursue discovery of the recordings. It was seven months before she followed up with the KSP.
She obtained two of the four tapes by September 17, 2018, but apparently made no effort
to depose those witnesses in the time remaining before the December 3, 2018 deadline. She was
informed by e-mail on October 5, 2018 of the KSP’s position that the other two tapes could not be
located. Although about a month remained before the discovery deadline expired, Plaintiff does
not indicate that she attempted to schedule any depositions of KSP representatives.
Plaintiff knew of the potential existence of the recordings, that KSP professed an inability
to locate them and that time was running short to complete discovery. Nonetheless, Plaintiff did
not file a motion to extend the discovery deadline. Indeed, she did not raise the issue until the
telephonic status conference which took place after the deadline expired.
As to the second factor, the importance of the requested discovery, the factor weighs in
favor of the Plaintiff insofar as the issue of the potentially missing witness recordings. The fifth
factor, whether the opposing party was responsive to discovery requests, does not weigh in
Plaintiff’s favor. Defendants provided Plaintiff with the two recordings they have (and which KSP
has apparently been unable to produce) and the letter from the KSP to Defendants’ counsel dated
October 2, 2018 (DN 18-1) indicates that Defendants have been pursuing production through their
own Open Records Act request. It is evident that to the extent production was within their power
Defendants have been cooperating in discovery.
WHEREFORE, the motion of Plaintiff to extend the discovery deadline, DN 17, is
DENIED. At DN 19 the undersigned stayed the remaining pretrial deadlines pending resolution
of this motion. Consequently, the deadlines are reset as follows: dispositive motions and motions
related to the admissibility of expert testimony pursuant to Fed. R. Evid. 702 (Daubert motions)

shall be due by January 28, 2018. In the event neither party files a motion of these types, the
parties are directed to contact the undersigned’s Case Manager to schedule a telephonic status
conference to set a trial date. In the event a motion of these types is filed, the undersigned will
await ruling before contacting the parties to set the telephonic conference.

December 28, 2018

Copies: Counsel