Walker v. Gusman et al

Filing 306

ORDER & REASONS re: 294 Motion for Discovery to Reconsider Prior Discovery Rulings and to Reopen Discovery. ORDERED that plaintiff's motion is GRANTED IN PART AND DENIED IN PART as set forth in document. ORDERED that additional discovery wil l be permitted, but all discovery must be completed no later than 4/20/15 as set forth in document. FURTHER ORDERED that the Court grants reconsideration of its prior discovery rulings in the disputed respects as set forth in document. Signed by Magistrate Judge Daniel E. Knowles, III on 1/21/15. (plh) Modified doc type on 1/21/2015 (plh).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MARK WALKER

CIVIL ACTION

VERSUS

NO. 12-2521

MARLIN GUSMAN, SHERIFF,
ORLEANS PARISH, ET AL.

SECTION: "S"(3)

ORDER AND REASONS
Plaintiff has filed a motion asking that the Court reopen discovery in this matter and
reconsider some of its prior discovery rulings. Rec. Doc. 294. The defendants have opposed that
motion. Rec. Doc. 298. Oral argument was held on December 17, 2014. At that argument, the
Court took the matter under advisement but instructed counsel to confer and attempt to reach
agreement concerning limitations on additional discovery. Counsel have conferred as directed, and
a copy of their report to the Court (a copy of which is attached to this opinion) reflects that they have
in fact reached agreement with respect to most issues. In light of that fact, and the Court having now
fully considered plaintiff's motion, IT IS ORDERED that plaintiff's motion is hereby GRANTED
IN PART AND DENIED IN PART as follows.
The Court finds that it is appropriate to reopen discovery in a limited manner. In his motion,
plaintiff acknowledges that "this Court has already addressed discovery issues ad nauseam";
however, he argues that his appointment "changes the equities in this case and justifies reopening
discovery." He is correct. Although the District Judge previously issued an order stating that
discovery was closed,1 the case is now in a significantly different posture. Since that order was
1

Rec. Doc. 232.

entered, counsel was appointed for plaintiff and leave was granted for the filing of an amended
complaint.
In light of the changed circumstances, it is only equitable that at least some additional
discovery be allowed.2 Although plaintiff tried his best to conduct discovery and did so zealously
while proceeding pro se, his success was limited by the fact that he is an incarcerated person
untrained in the law. Now that he has counsel, discovery can be conducted in a more controlled,
logical, and efficient manner. That said, it is not appropriate to return to "square one" on discovery.
As the defendants note in their opposition to the instant motion, plaintiff submitted more than 64
discovery requests prior to the appointment of counsel. Further, the defendants have already
produced voluminous information, including: plaintiff's discipline records; medical records; both
electronic and handwritten grievance records; booking and intake records; location and housing
records; telephone call logs; both previous and current relevant policy and procedure excerpts;
Special Operations Division investigative reports regarding plaintiff's claim of sexual assault; a copy
of the video interview of plaintiff by the Special Operations Division; contact information for
Securus Technologies, Inc., the servicing technician for the Orleans Parish Prison system; and the
name of the custodian of the jail systems phone records. Obviously, the defendants should not now

2

Moreover, such reopening of discovery conforms to the wishes and expectations of the
presiding District Judge. The undersigned has checked with her chambers and was advised that she
expected that additional discovery would be allowed. It must also be noted that a scheduling order
was recently issued on her behalf which sets a new discovery deadline of April 20, 2015. Rec. Doc.
303. Further, denying additional discovery would be unfair and counterproductive in light of the
appointment of counsel. Indeed, it strikes the undersigned as inconsistent to appoint counsel and
then deny him the tools (such as relevant discovery) necessary for him to adequately represent his
client.
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be required to retread the same ground, and the reopening of discovery will therefore be limited as
set forth later in this opinion.
Plaintiff also requests that the Court reconsider its prior discovery rulings in Rec. Docs. 153
(which denied in part a motion to compel various discovery responses) and 208 (which denied a
motion to compel an unredacted copy of a 2008 report by the National Institute of Corrections). The
defendants counter that, in determining whether reconsideration is appropriate, the Court should
apply the factors considered with respect to Rule 59(e) motions. If those factors are applied,
plaintiff would be required to show:
(1) the motion is necessary to correct a manifest error of law or fact upon which the
judgment is based;
(2) the movant presents newly discovered or previously unavailable evidence;
(3) the motion is necessary in order to prevent manifest injustice; or
(4) the motion is justified by an intervening change in controlling law.
Southern Snow Mfg. Co, Inc. v. SnoWizard Holdings, Inc., 921 F. Supp. 2d 548, 565 (E.D. La.
2013). The defendants opine that plaintiff has not shown that any of those factors exist in the instant
case, and this Court would agree on that limited point.
Nevertheless, the Court finds that it is not in fact limited to assessing the motion based solely
on the foregoing factors. Although some courts have rather strictly applied the Rule 59(e) factors
to motions for reconsideration, it appears that those factors should be considered only as guidelines,
not as an exhaustive and exclusive list of factors which may be considered with respect to a motion
to reconsider an interlocutory order such as the one at issue here. As Judge Hicks in the Western
District of Louisiana has explained:
Rule 54(b) is the proper procedural vehicle to request that a district court reconsider
an interlocutory order. See Brown v. Wichita County, Tex., No. 05-108, 2011 WL
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1562567, *2 (N.D. Tex. April 26, 2011). While the exact standard for deciding a
Rule 54(b) motion to reconsider is unclear, "whether to grant such a motion rests
within the discretion of the court." Id. Moreover, "the district court's discretion in
this respect is broad." Id.
A Rule 54(b) motion to reconsider "requires the court to determine whether
reconsideration is necessary under the relevant circumstances." Id. While the legal
standard for evaluating a motion to reconsider under Rule 54(b) appears to be less
exacting than that imposed by Rules 59 and 60, "considerations similar to those
under Rules 59 and 60 inform the Court's analysis." Id. Such considerations include
whether the movant is attempting to rehash its previously made arguments or is
attempting to raise an argument for the first time without justification. See Valles
v. Frazier, No. 08-501, 2009 WL 4639679, *2 (W.D. Tex. Nov. 30, 2009). Yet,
because the district court is faced on with an interlocutory order, it is free to
reconsider its ruling "for any reason it deems sufficient, even in the absence of new
evidence or an intervening change in or clarification of the substantive law." Brown,
2011 WL 1562567, *2, citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910
F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 n.14 (5th Cir.1994) (en banc).
Nierman v. Ohio Casualty Insurance Co., Civ. Action No. 10-0319, 2012 WL 1039683, at *3 (W.D.
La. Mar. 18, 2012). In light of the changed circumstances, particularly the appointment of counsel,
the Court finds that narrow reconsideration of its prior rulings is appropriate in the instant case.
Accordingly,
IT IS ORDERED that additional discovery will be permitted, but all discovery must be
completed no later than April 20, 2015, as set forth in the recent scheduling order issued on behalf
of the District Judge. With respect to the limitations on discovery, all discovery on which the
parties have already agreed as noted in the attached correspondence shall be allowed. As to
the areas of disagreement, the Court rules as follows:
Depositions. Plaintiff is allowed to depose Sheriff Gusman, Deputy Lacking, and Deputy
Lumar. However, the request for a Rule 30(b)(6) deposition "regarding Orleans Parish Prison's

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position on Walker's claims" is, as the defendants note, too overbroad. That deposition will not be
allowed as currently requested; however, plaintiff may reformulate his request in a more narrow
fashion if he so desires.
SOD Investigatory Reports concerning sexual assaults, physical assaults, and uses of
force. The Court finds that even if limited to the years 2009-2012, this request is overbroad and
unduly burdensome. However, plaintiff may reformulate and reurge a more limited request, and he
may file a motion to compel if that new request is refused.
Communications between OPP and DOJ. The communications are to be produced;
however, the defendants may make appropriate redactions based on privilege so long as they submit
a privilege log detailing those redactions. If the circumstances so warrant, plaintiff may then file
an appropriate motion challenging the asserted privilege(s).
IT IS FURTHER ORDERED that the Court grants reconsideration of its prior discovery
rulings in the disputed respects as follows:
Discovery Item #14. Within thirty days, the defendants shall produce the employment
records of Curtis Lumar, Krystal Lacking, Dr. Higgins, and Nurse Oates.
NIC Report. Within thirty days, the defendants shall produce an unredacted copy of the
2008 report.
New Orleans, Louisiana, this twenty-first day of January, 2015.

____________________________________
DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE

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