Jewell-Moore et al v. Conrad et al
MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge Regina S. Edwards on 11/14/2023. Plaintiffs' Motion to Compel the deposition of former Mayor Fischer and a Rule 30(b)(6) representative deponent from Louisville Metro or the LMPD (DN [77 ]) is DENIED. Plaintiffs' Request for Reasonable Costs and Attorneys Fees (DN 77 ) is DENIED. Defendants' Motion for Protective Order to prevent the deposition of former Mayor Fischer and Plaintiffs' Rule 30(b)(6) deposition (DN 78 ) is GRANTED. cc: Counsel (SMJ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:20-CV-00530-DJH
TONI MITCHELL, et al.
Administratrix of the Estate of D’Juantez Anthony Mitchell
BRYAN ARNOLD, et al.
MEMORANDUM OPINION AND ORDER
Before the Court in this 42 U.S.C. § 1983 civil rights action is Plaintiffs Toni Mitchell and
Courtney Jewell Moore’s (“Plaintiffs”) Motion to Compel the deposition of former
Louisville/Jefferson County Metropolitan (“Louisville Metro”) Mayor Greg Fischer and the Rule
30(b)(6) deposition of a Louisville Metro and/or Louisville Metro Police Department (“LMPD”)
representative regarding the Department of Justice (“DOJ”) investigative report on these
institutions. (DN 77). Defendants Bryan Arnold, Steve Conrad, Robert Schroeder, and the
Louisville Metro/LMPD (“Defendants”) have filed a Motion for Protective Order in response. (DN
78). This matter has been referred to the undersigned United States Magistrate Judge for resolution
of all non-dispositive matters, including discovery issues. (DN 12).
This lawsuit arises from the fatal shooting of D’Juantez Anthony Mitchell on May 15, 2019
by law enforcement officers during an investigative stop of Mitchell’s vehicle. (DN 1, at ¶¶ 1731). Plaintiffs Toni Mitchell (administratrix for Mitchell’s estate) and Courtney Jewell Moore
(guardian for Mitchell’s minor children) bring claims of excessive force, battery, wrongful death,
and gross negligence in violation of 42 U.S.C. § 1983 against Defendants Steve Conrad (former
Louisville Metro Police Chief); Robert Schroeder (former interim Louisville Metro Police Chief);
the LMPD/Louisville Metro; and Officer Bryan Arnold in his individual and official capacity. (Id.
at ¶¶ 37-59). Plaintiffs also assert a municipal liability (Monell) claim against Defendants for
failure to supervise and train Officer Arnold in the use of deadly force. (Id. at ¶¶ 40-44).
On January 10, 2022, after over a year of discovery, Defendants moved for judgment on
the pleadings as to Plaintiffs’ Monell claim. (DN 48). Defendants also moved to stay discovery on
the Monell claim pending resolution of their motion. (Id.). The undersigned stayed discovery in
the case pending a ruling by the Court on Defendants’ motions (DN 55), and Plaintiffs filed their
response in opposition. (DN 56). Upon review of these motions and oral arguments by counsel,
the Court converted Defendants’ Motion for Judgment on the Pleadings into a Motion for
Summary Judgment. (DN 68). The Court directed the undersigned “to determine whether the
previous stay of discovery . . . should be lifted and to set a final briefing schedule for the converted
motion.” (Id.). After several status conferences to resolve the parties’ discovery disputes, the
undersigned lifted the stay. (DN 73). The parties ultimately reported that they had made some
progress concerning outstanding discovery but were unable to reach a complete agreement as to
certain depositions sought by Plaintiffs.1 (DN 76).
Since the parties were unable to resolve their discovery disputes, the Court ordered
Plaintiffs to file a Motion to Compel these depositions (DN 75). On June 7, 2023, Plaintiffs filed
their Motion to Compel both the deposition of former Mayor Fischer regarding the reasoning
behind Defendant Conrad’s termination in 2020 and a Rule 30(b)(6) deposition of a Louisville
Metro/LMPD representative regarding the DOJ report.2 (DN 77). Defendants filed a combined
response in opposition and Motion for Protective Order. (DN 78).
The parties agreed to proceed with the deposition of former LMPD Chief Yevette Gentry and to Defendants’
production of additional documents. (DN 76).
The DOJ conducted a comprehensive investigation of LMPD conduct spanning nearly six years and issued a report
on March 8, 2023 which found that Louisville Metro and LMPD are engaged in a pattern or practice of conduct that
II. Legal Standard
Discovery matters are “committed to the sound discretion of the district court.” In re Air
Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996) (citations and quotations omitted). Discovery is
limited to matters that are nonprivileged, relevant to a claim or defense, and proportionate to the
needs of the case. Fed. R. Civ. P. 26(b)(1). Relevance is to be “construed broadly to encompass
any matter that bears on, or that reasonably could lead to other matter that could bear on” a party’s
claim or defense. Hadfield v. Newpage Corp., No. 5:14-CV-00027-TBR-LLK, 2016 U.S. Dist.
LEXIS 12744, at *9 (W.D. Ky. Feb. 3, 2016) (quoting Oppenheimer Fund v. Sanders, 437 U.S.
340, 351 (1978)).
Pursuant to Rule 37 of the Federal Rules of Civil Procedure, “a party may move for an
order compelling disclosure or discovery,” provided that the party certifies to the court that it has,
in good faith, conferred or attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action. Fed. R. Civ. P. 37(a)(1). The nonmoving
party that objects to the discovery request has the burden of showing that “the discovery requests
are improper.” Polylok, Inc. v. Bear Onsite, LLC, No. 3:12-CV-00535-DJH-CHL, 2017 U.S. Dist.
LEXIS 41960, at *12 (W.D. Ky. Mar. 23, 2017). If the nonmoving party “raises an objection to
discovery based on relevance, the burden shifts to the party seeking the information to demonstrate
that the requests are relevant to the subject matter involved in the pending action.” Strategic Mktg.
& Research Team, Inc. v. Auto Data Sols., Inc., No. 2:15-cv-12695, 2017 U.S. Dist. LEXIS 48375,
at *7 (E.D. Mich. Mar. 31, 2017) (quoting GCA Servs. Grp. v. ParCou, LLC, No. 2:16-cv-02251STA-cgc, 2016 U.S. Dist. LEXIS 171349, at *10 (W.D. Tenn. Dec. 12, 2016)).
deprives people of their rights under the Constitution and federal law.
In contrast, upon a showing of good cause, courts may issue a protective order that
“forbid[s] the disclosure or discovery” of certain material to prevent “annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Under Rule 26(c)(1), showing
good cause requires the moving party “to make a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements[,]” with respect to the potential of the
material to annoy, embarrass, oppress, unduly burden, or unduly cost the party. HD Media Co.,
LLC v. United States DOJ, 927 F.3d 919, 929 (6th Cir. 2019) (quotation omitted); see Nemir v.
Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004) (quotation omitted).
A. Deposition of Former Mayor Fischer
Plaintiffs are seeking to depose former Louisville Mayor Fischer regarding “all of the
reasons” why he terminated former LMPD Chief Conrad on June 1, 2020. (DN 77-1, at PageID #
1904). Specifically, they argue that, if “[Conrad’s] termination had anything to do with the Chief’s
failure to enforce policies as to race or use of force,” this information would bolster their Monell
claim. (Id. at PageID # 1922).
In their response, Defendants argue that former Mayor Fischer should not be subject to a
deposition because he is a former high-ranking government official, he has no personal knowledge
of the claims at issue in this case, and the information that Plaintiffs seek from former Mayor
Fischer has already been provided by Conrad. (DN 78, at PageID # 2028-32). Defendants urge the
Court to apply the “extraordinary circumstances test” adopted by a number of circuits and by some
district courts within the Sixth Circuit.3 (Id. at PageID # 2030; see also EMW Women’s Surgical
The Sixth Circuit recognized the protection given to nonjudicial high-ranking government officials in Warren Bank
v. Camp, but it did not elaborate on the protection, and it appears to have not addressed the issue since. 396 F.2d 52,
56-57 (6th Cir. 1968).
Ctr., P.S.C. v. Glisson, No. 3:17CV-00189-GNS, 2017 U.S. Dist. LEXIS 139725, at *4 n.1 (W.D.
Ky. Aug. 30, 2017) (listing cases)).
Plaintiffs, on the other hand, ask the Court to apply the analysis used in the Sixth Circuit’s
Serrano decision to the instant matter. (DN 77-1, at PageID # 1912) (citing Serrano v. Cintas
Corp., 699 F.3d 884, 901 (6th Cir. 2012)). In Serrano, the Sixth Circuit held that the “apex
doctrine”4 did not preclude the deposition of the defendant corporation’s chief executive officer.
Id. at 902. Plaintiffs assert that former Mayor Fischer has personal knowledge regarding Conrad’s
dismissal and is the only person who can explain the reasoning behind his termination. (DN 77-1,
at PageID # 1923). Additionally, Plaintiffs point to the fact that former Mayor Fischer is no longer
an active government official as support for their contention that the extraordinary circumstances
test does not apply in this case. (Id. at PageID # 1913).
Regardless of whether the Court applies the extraordinary circumstances test or the strict
adherence to Rule 26 as outlined in Serrano, former Mayor Fischer should not be deposed.
First, under the extraordinary circumstances test, the general rule across the circuits is “that
absent extraordinary circumstances, high-ranking officials may not be subjected to depositions or
called to testify regarding their official actions.” Coleman v. Schwarzenegger, Nos. CIV S-900520 LKK JFM P, C01-1351 TEH, 2008 U.S. Dist. LEXIS 70224, at *19-20 (E.D. Cal. Sep. 15,
2008) (collecting cases). These extraordinary circumstances may be met where (1) the official has
first-hand knowledge related to the claim being litigated, and (2) it is shown that other persons
cannot provide the necessary information. EMW Women’s Surgical Ctr., P.S.C., 2017 U.S. Dist.
LEXIS 139725, at *6-7 (citing Boudreau, 2008 U.S. Dist. LEXIS 75611, at *4; Baine v. Gen.
The “extraordinary circumstances test” outlined below is very similar to the so-called “apex” or “Morgan doctrine.”
Motors Corp., 141 F.R.D. 332, 335 (M.D. Ala. 1991); In re United States (Holder), 197 F.3d 310,
314 (8th Cir. 1999)).
The rationale behind this doctrine considers “the responsibilities and time constraints
incumbent on high-ranking officials” and concerns that “testifying in every case to which the
agency or administration is a party would monopolize the official’s time.” EMW Women’s Surgical
Ctr., P.S.C., 2017 U.S. Dist. LEXIS 139725, at *6 (quoting In re United States (Kessler), 985 F.2d
510, 512 (11th Cir. 1993); Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586 (1985);
United States v. Morgan, 313 U.S. 409, 422 (1941)).
The parties do not dispute that Fischer’s former governmental position as Louisville mayor
would have qualified him as a high-ranking official under the framework of the extraordinary
circumstances test. See Scott v. Louisville/Jefferson Cty. Metro Gov’t, No. 3:20-CV-00535-BJBCHL, 2023 U.S. Dist. LEXIS 142301, at *12 (W.D. Ky. Aug. 14, 2023) (“Mayor Greenberg is
considered a high-ranking official not normally subject to the burden of depositions.”); see also
Elvis Presley Enters. v. City of Memphis, No. 2:18-cv-02718, 2020 U.S. Dist. LEXIS 125534, at
*7 (W.D. Tenn. July 16, 2020). Instead, Plaintiffs argue that Fischer no longer serving in office is
a “factor” when considering whether the deposition will interfere with his duties. (DN 77-1, at
PageID # 1913).
Although some courts find that the rationales behind protecting state officials from
deposition apply “with less force” when the proposed deponent no longer holds that position,
federal courts largely appear in agreement that the extraordinary circumstances protections apply
equally to current and former high-ranking officials. Burgess v. United States, No. 17-11218, 2022
U.S. Dist. LEXIS 226358, at *16 (E.D. Mich. Dec. 15, 2022); see also United States v. Wal-Mart
Stores, Civil Action No. PJM-01-1521, 2002 U.S. Dist. LEXIS 6929, at *11 (D. Md. Mar. 29,
2002) (“In the absence of controlling case law to the contrary, this Court is of the opinion that the
Morgan doctrine is applicable to efforts by parties to depose former high-ranking officials.”);
Presti v. City of N.Y., 609 F. Supp. 3d 204, 207 n.2 (E.D.N.Y. 2022) (noting that the Second Circuit
applies the test to former officials). While the concern that depositions would take away from the
official’s duties in office is no longer present, the need to protect the integrity of the underlying
decision-making process and encourage people to pursue careers in public service continues to
persist after the official leaves government service. United States v. Newman, 531 F. Supp. 3d 181,
188 (D.D.C. 2021). Because the extraordinary circumstances test applies to former Mayor Fischer,
the inquiry then becomes whether (1) Fischer possesses information essential to the case; and (2)
Plaintiffs cannot obtain that information through other means.
As to the first factor, Plaintiffs argue that former Mayor Fischer has unique, first-hand
knowledge of the facts at issue. (DN 77-1, at PageID # 1923). They specifically rely on Conrad’s
deposition, claiming that “Conrad testified he was told he was fired due to an ‘institutional failure’
within the LMPD.” (Id. at PageID # 1906). Plaintiffs intend to depose Fischer about “what
institutional failures the Mayor was concerned with . . . as such failures clearly could support
Plaintiffs’ Monell Claim.” (Id.). But Plaintiffs fail to acknowledge that, earlier in the deposition,
Conrad revealed exactly which institutional failure prompted Fischer to terminate him: “[t]he fact
that the two officers that were involved in [the David McAtee] shooting didn’t have their body
cameras on . . . the mayor saw that as an institutional failure on my part and—and that I was—
was being dismissed.”5 (DN 78-1, at PageID #2041) (emphasis added). Rather than establishing
extraordinary circumstances which warrant Fischer’s deposition, Conrad’s deposition testimony
During a large protest in downtown Louisville relating to Breonna Taylor’s death, LMPD officers and National
Guard members fired multiple shots at restaurant owner David McAtee, with a Guard member firing the round that
ultimately killed him. (DN 77-2, at PageID # 1987).
demonstrates that Fischer’s decision to terminate Conrad was not related to the facts of this case.
Further, former Mayor Fischer has submitted an affidavit stating that he has no personal knowledge
of “the events surrounding the shooting of D’Juantez Mitchell, the investigation thereof or the
claims at issue in the above lawsuit.” (DN 78-2, at PageID # 2051).
Plaintiffs also cite to Herrera as persuasive authority, where the Southern District of New
York determined that a former mayor had unique first-hand knowledge related to the plaintiffs’
race-based employment discrimination case to justify deposing him. Herrera v. N.Y.C. Dep’t of
Educ., No. 1:21-cv-7555-MKV, 2022 U.S. Dist. LEXIS 107107 (S.D.N.Y. June 15, 2022). But the
circumstances here are distinguishable because there is no evidence that the LMPD was under
“mayoral control,” that former Mayor Fischer was the “ultimate decision-maker” in relation to the
Mitchell investigation, or that Fischer was a “micro-manager” directly involved in the
department’s management and operation. Id. at *3. Although Conrad testified that Fischer “could
have gotten rid of me for any reason[,]” Plaintiffs’ own motion identifies Conrad as the “chief
policy maker for the LMPD.” (DN 78-1, at PageID # 2049; DN 77-1, at PageID # 1915).
Plaintiffs have also not met the second extraordinary circumstances factor—that no other
person possesses the information in question or that such information may not be obtained by other
means. See Watson v. City of Cleveland, 202 F. App’x 844, 852 (6th Cir. 2006) (denying motion
to compel mayor’s deposition because information could be obtained from other members of the
mayoral administration and through less burdensome forms of discovery). Conrad was informed
of the reasoning behind his termination and has already testified to that effect. (DN 78-1, at PageID
# 2041). Conrad further testified that he was given this reasoning by Deputy Mayor Ellen Hesen,
another person who possesses the information that Plaintiffs seek; however, they have not
attempted to depose her. (Id.). Finally, although Fischer has offered to respond to interrogatories
or requests for admission, Plaintiffs have refused to consider these less intrusive methods without
explaining why they are inadequate. (DN 78, at PageID # 2026). Thus, the Court finds that
extraordinary circumstances do not exist to warrant the deposition of former Mayor Fischer.
Second, even if the extraordinary circumstances doctrine does not apply, Defendants have
sufficiently specified the harm that former Mayor Fischer would suffer from being deposed as
required by the strict adherence to Rule 26 outlined in Serrano. Defendants allege that the former
mayor’s deposition is a fishing expedition “into a collateral issue that is too irrelevant and
attenuated from the case” to be justified. (Id. at PageID # 2021).
In support of their assertion, Defendants point to Graves, in which the Sixth Circuit
affirmed the District Court’s ruling that a protective order was proper where the mayor, who had
previously demanded the resignation of the police chief for unrelated reasons, had no relevant
knowledge of the plaintiff’s excessive force claim. Graves v. Bowles, 419 Fed. Appx. 640 (6th Cir.
2011). Like the mayor in Graves, Fischer does not appear to have any information relevant to
Plaintiffs’ claims. Although Plaintiffs assert that “the dismissal may (and likely did) result from
other reasons which are not yet known[,]” the record in no way establishes that Conrad’s
termination was related to anything other than the McAtee shooting. (DN 81, at PageID # 2016).
The facts giving rise to this action occurred on May 15, 2019, but Conrad was not terminated until
June 1, 2020. (DN 1, at ¶¶ 17-31; DN 78-1, at PageID # 2040). In a televised press conference,
former Mayor Fischer reported that Conrad’s termination resulted from the McAtee shooting. (DN
77-1, at PageID # 1910). Despite “extensive discovery,” it appears that Plaintiffs only rely on
Conrad’s deposition and speculative arguments to draw a tenuous connection between the two
events. (DN 77-1, at PageID # 1907).
As Plaintiffs have failed to provide a factual basis supporting their contention that Fischer’s
deposition could produce relevant information to bolster their Monell claim, subjecting the
former mayor to a deposition appears to serve no other purpose than to harass, annoy, or unduly
burden him. Defendants’ specific demonstrations of harm to former Mayor Fischer justify
entry of a protective order under both Rule 26 and Serrano.
B. Rule 30(b)(6) Deposition Concerning DOJ Report
In their Rule 30(b)(6) notice submitted to Defendants, Plaintiffs stated that they are seeking
to depose a designated representative of Louisville Metro and/or the LMPD about “the Department
of Justice Investigation into the conduct of Louisville/Metro Government and its police force and
those findings and conclusions set forth in the Department of Justices’ [sic] investigation and
report into policing practices of the LMPD, and any consent decree related thereto.” (DN 78-3, at
PageID # 2053). In their reply, Plaintiffs narrowed the scope of their previous notice, stating that
the deposition’s focus:
[W]ould include, for example, the underlying data developed by the LMPD and
sent to the DOJ; the people involved in collecting the data; the methods used to
collect the data; the discussions between the DOJ personnel and LMPD personnel
concerning the data collected; discussions between the DOJ and the LMPD and the
conclusions reached in the report; and the LMPD’s agreement or disagreement
regarding the findings of the DOJ, etc.
(DN 81, at PageID # 2067).
Defendants seek a protective order to prohibit the deposition. (DN 78). In support of their
motion, Defendants allege that Plaintiffs’ Rule 30(b)(6) notice is facially invalid as it does not
meet the standard of particularity required by the rule.6 (Id. at PageID # 2032).
Defendants also argue that Plaintiffs cannot revise their notice in their reply brief. (DN 82, at PageID # 2192).
Because the Court finds that neither Plaintiffs’ original nor revised notice complies with Rule 30(b)(6)’s “reasonable
particularity” standard, it need not address Defendants’ additional argument.
Rule 30(b)(6) governs the requirements for a notice or subpoena directed to a governmental
entity. Fed. R. Civ. P. 30(b)(6). It requires the party seeking the deposition of a government entity
to describe “with reasonable particularity the matters for examination.” Id. Upon receipt of the list
of matters or topics, the entity is then tasked with producing a witness “knowledgeable about the
subjects described in the notice and to prepare the witness or witnesses to testify not simply to
their own knowledge,” but the knowledge of the entity. Janko Enters. v. Long John Silver’s, Inc.,
No. 3:12-CV-345-S, 2014 U.S. Dist. LEXIS 185334, at *12 (W.D. Ky. Apr. 2, 2014).
The test for reasonable particularity is “whether the request places the party upon
reasonable notice of what is called for and what is not.” Alvey v. State Farm Fire & Cas. Co., No.
5:17-CV-00023-TBR-LLK, 2018 U.S. Dist. LEXIS 21356, at *20 (W.D. Ky. Feb. 9, 2018)
(quoting St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa
2000)). There is some disagreement among the federal courts as to the exact meaning of the
“reasonable particularity” requirement of Rule 30(b)(6). See Green v. Platinum Rests. MidAmerica, LLC, No. 3:14-CV-439-GNS, 2017 U.S. Dist. LEXIS 237096, at *20 (W.D. Ky. Oct. 23,
2017) (discussing the various judicial standards). However, there is no dispute that topics must be
stated with enough specificity to allow the entity to designate and prepare a representative to
testify. See Alvey, 2018 U.S. Dist. LEXIS 21356, at *7 (finding that the corporate defendant could
not “reasonably designate and prepare a corporate representative to testify on its behalf regarding
these broad lines of inquiry.”). Further, “topics not reasonably calculated to lead to the discovery
of admissible evidence are likewise not within the scope of discovery.” Green, 2017 U.S. Dist.
LEXIS 237096, at *21.
The Court agrees with Defendants that neither Plaintiffs’ original deposition notice nor its
narrowed revision are reasonably particular enough to withstand Rule 30(b)(6)’s requirements.
First, the open-ended nature of the notice is concerning. The terms “for example” and “etc.” act as
catch-alls that render the deposition focus essentially limitless. (DN 81, at PageID # 2067; see also
Green, 2017 U.S. Dist. LEXIS 237096, at *48 (“[T]he better rule in the opinion of this Court is to
strike [“including but not limited to”] language as being overbroad since it imposes virtually no
limitation on the questioning party.”); Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D.
118, 125 (D.D.C. 2005) (“Listing several categories and stating that the inquiry may extend beyond
the enumerated topics defeats the purpose of having any topics at all.”). The notice’s over-inclusive
language fails to place Defendants on reasonable notice of what is called for and what is not.
Second, although some information in the DOJ report is relevant to Plaintiffs’ Monell
claim, their notice includes information which is outside the scope of these claims. As Plaintiffs’
Monell claim alleges that the LMPD failed to train and supervise Officer Arnold in the use of
deadly force, information concerning the LMPD’s use of excessive force or its failure to
adequately support and supervise officers would be relevant. (DN 77-2). However, the majority of
the report includes findings which are not relevant to Plaintiffs’ claims and concern, for example,
invalid search warrants, First Amendment violations, violations of the Americans with Disabilities
Act, and inadequate responses to sexual assault and domestic violence cases. (Id.). Plaintiffs’
notices, both original and revised, fail to differentiate between the DOJ’s findings and the LMPD’s
data which pertain to Plaintiffs’ claims and those which do not. Not only would it be unreasonable
to expect Louisville Metro or the LMPD to designate and prepare a representative to testify about
these broad topics, it would also be outside of the scope of discovery. As such, the Court cannot
compel Louisville Metro or the LMPD to designate a representative to testify regarding the topics
in Plaintiffs’ Rule 30(b)(6) notice as submitted.
Even if Plaintiffs’ notice was sufficient, however, none of their justifications for seeking a
Rule 30(b)(6) designee from Louisville Metro or the LMPD are compelling. Plaintiffs mainly
assert two arguments in support of compelling the deposition. First, Plaintiffs state that “[t]here
can be no real argument that the information sought by Plaintiffs does not go to the Monell Claim
or potentially [sic] defenses the Defendants might assert against that Claim.” (DN 77-1, at PageID
# 1926). As discussed above, the Court finds that a majority of the topics included in Plaintiffs’
Rule 30(b)(6) notices include information that is irrelevant to their Monell claim. Even though
some of the DOJ’s findings could be beneficial to their claim, it would still be inappropriate for
Plaintiffs to depose a representative about these findings because the DOJ report is conclusory.
The report largely consists of broad assertions against the LMPD and its practices with a few
references to specific examples supporting these assertions, none of which discuss the Mitchell
shooting. (DN 77-2). As the report gives little indication about the underlying data used by the
DOJ to reach its conclusions, it is dubious what information a representative could provide to
Plaintiffs that would bolster their Monell claim.
Second, Plaintiffs’ stated purpose in pursuing this deposition is to discover which
occurrences of misconduct the DOJ relied on to reach the conclusions in its report. (DN 77-1, at
PageID # 1927). Specifically, because the investigation covered the time during which Mitchell
was shot, “[t]here could even be specific information known to the LMPD and provided to the
DOJ regarding Mr. Mitchell and his shooting.” (Id. at PageID # 1925). In support of their
contention that the LMPD can testify as to this information, Plaintiffs cite to a section of the report
in which the DOJ states that its findings are based on Louisville Metro’s and the LMPD’s own
data. (Id. at 2070). This data included “thousands of documents,” “thousands of hours of bodyworn camera footage[,]” “conversations with hundreds of LMPD officers, Louisville Metro
employees, and community members[,]” “numerous onsite tours[,]” and other types of evidence
Rather than persuade the Court that Louisville Metro or the LMPD is capable of
designating a representative to testify at a Rule 30(b)(6) deposition, Plaintiffs’ reliance on the
preceding information supports the opposite conclusion. Although the data relied on by the DOJ
came largely from the LMPD, the vast amount of information which comprised that data would
make it virtually impossible for the LMPD to designate a representative or representatives to testify
as to it all, much less prepare them adequately for the deposition. Further, Defendants assert that,
“[i]n response to the DOJ’s request for information, LMPD primarily provided the DOJ direct
access to existing LMPD databases, and the DOJ . . . drew its own conclusions as to what was
relevant and significant without curation by Metro.” (DN 82, at PageID # 2195). As the LMPD
did not engage in any organized collection or transfer of data to the DOJ, it cannot provide
information about the specific examples of misconduct on which the DOJ based its conclusions.
Indeed, authorizing this deposition would essentially give Plaintiffs permission to question the
designee about the entirety of the information located in the LMPD’s databases, which far exceeds
the scope of Plaintiff’s Monell claim in this case.
Plaintiffs also point out that the DOJ and LMPD are engaging in negotiations for a consent
decree as support for their assertion that there must be someone at the LMPD knowledgeable
enough about the data behind the report’s findings to testify. (DN 77-1, at PageID # 1925).
However, alleging that a LMPD employee is informed about the report’s findings is not the same
as alleging that they have specific knowledge about the information utilized by the DOJ in reaching
those findings. It is possible for the LMPD to negotiate a consent decree with the DOJ without
being privy to all the facts supporting the DOJ’s conclusions. Moreover, the Court is not convinced
that information pertaining to the consent decree is relevant to Plaintiffs’ claims. Again, the
consent decree would relate to all the issues discussed in the DOJ’s report—most of which have
no connection to Plaintiff’s Monell claim. But even as to sections of a potential decree relating to
Plaintiffs’ claim, it is difficult to see how Plaintiffs would be entitled to depose an LMPD
representative about negotiations relating to future resolutions to the issues described in the report.
Lastly, Defendants have met their burden of establishing good cause for a protective order
under Rule 26(c)(1) to prohibit the Rule 30(b)(6) deposition. Defendants allege that Plaintiffs
request a deposition that is “unduly burdensome, infeasible, unreasonably cumulative and concerns
information not reasonably attributable to the organization.” (DN 82, at PageID # 2195). Most of
the topics included in Plaintiffs’ notices are irrelevant and not important to resolve the case. The
information about which Plaintiffs seek to depose a LMPD representative covers thousands of
documents, hours of footage, and hundreds of interviews of both LMPD employees and
community members. Requiring Louisville Metro or the LMPD to designate and prepare a witness
to testify as to this vast amount of largely irrelevant information would only serve to unduly burden
Defendants. Thus, Defendants have articulated specific facts demonstrating the harm they would
suffer in accordance with the requirements of Rule 26(c)(1) and Serrano and a protective order
preventing this deposition is appropriate.
The Court declines to compel either the deposition of former Mayor Fischer or a Rule
30(b)(6) deposition of a Louisville Metro or LMPD representative. Defendants have put forth
particularized statements of fact establishing sufficient harm to justify a protective order
prohibiting these depositions. Fischer’s lack of personal knowledge about the Mitchell shooting
and the fact that the information sought by Plaintiffs can be obtained by deposing other people or
through less burdensome means satisfies the elements of the extraordinary circumstances test. But
even if the test was inapplicable, the record demonstrates that Conrad’s termination was
unrelated to the facts of this case; thus, deposing Fischer would only serve to annoy, harass, or
cause him undue burden. Regarding Plaintiffs’ Rule 30(b)(6) deposition, the overly broad nature
of Plaintiffs’ request is not “reasonably particular” as required by the Rule. Additionally, given
the conclusory nature of the DOJ report, the large volume of data underlying its findings, and
the DOJ’s direct access to the LMPD databases during its investigation, Defendants could
neither designate nor prepare a witness to testify as to the data behind the DOJ report. To
subject Defendants to Plaintiffs’ requested deposition concerning such a large amount of
largely irrelevant information would be unduly burdensome. Since the Court denies Plaintiffs’
Motion to Compel, they are not entitled to an award of reasonable costs and attorney’s fees.
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel the deposition of former
Mayor Fischer and a Rule 30(b)(6) representative deponent from Louisville Metro or the LMPD
(DN 77) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Request for Reasonable Costs and
Attorney’s Fees (DN 77) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Protective Order to prevent
the deposition of former Mayor Fischer and Plaintiffs’ Rule 30(b)(6) deposition (DN 78) is
Counsel of Record
November 14, 2023
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