Imani et al v. City of Baton Rouge et al

Filing 6

RULING denying #2 MOTION for Leave of Court to Conduct Limited Expedited Discovery. Signed by Magistrate Judge Erin Wilder-Doomes on 7/25/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BLAIR IMANI, ET AL.
CIVIL ACTION
VERSUS
NO. 17-439-JWD-EWD
CITY OF BATON ROUGE, ET AL.
RULING ON MOTION FOR LEAVE OF COURT TO CONDUCT LIMITED
EXPEDITED DISCOVERY
Before the court is a Motion for Leave of Court to Conduct Limited Expedited Discovery
(the “Motion to Conduct Expedited Discovery”).1 The Motion to Conduct Expedited Discovery
was filed by plaintiffs, Blair Imani, Akeem Muhammad, Raae Pollard, Samantha Nichols, Tammy
Cheney, Alexus Cheney, Victor Onuoha, Antonio Castanon Luna, Nadia Salazar Sandi, Karen
Savage, Cherri Foytlin, Dr. Daniel Liebeskind, Alisha Feldman, Finn Phoenix, and Leah Fishbein
(collectively, “Plaintiffs”). No defendant has made an appearance in this matter. For the reasons
set forth herein, the Motion to Conduct Expedited Discovery is DENIED without prejudice.
I.

Background
This suit arises out of the July 5, 2016 shooting of Alton Sterling and the subsequent

protests that occurred in Baton Rouge, Louisiana on July 10, 2016. On July 9, 2017, Plaintiffs
filed a Complaint alleging, inter alia, false arrest and imprisonment, use of excessive force, and
violations of constitutional rights.2 On July 21, 2017, Plaintiffs filed an Amended Complaint.3 In
addition to naming various individual officers as defendants, Plaintiffs name the City of Baton
Rouge; the Parish of East Baton Rouge; Melvin “Kip” Holden in his individual capacity and in his
official capacity as former Mayor-President of the City/Parish; Sid Gautreaux III, the Sheriff of

1

R. Doc. 2.

2

R. Doc. 1, ¶¶ 260-300; R. Doc. 5, ¶¶ 261-298.

3

R. Doc. 5.

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East Baton Rouge Parish; Carl Dabadie, Jr, the Chief of the Baton Rouge Police Department; the
Louisiana State Police (“LSP”); Col. Michael Edmonson and Kevin Reeves, Superintendents of
the LSP; Sheriff Mike Cazes; Chuck Hurst, the director of the Louisiana Sheriffs’ Association
Task Force and Homeland Security services; the Louisiana Sheriff’s Association;4 Atlantic
Specialty Insurance Company, the alleged liability insurer of the East Baton Rouge Sheriff’s
Department;5 and AIX Group, d/b/a Nova Casualty Company, which allegedly “provides
insurance to the Louisiana Sheriff’s Association and some of its members, including the East Baton
Rouge Sheriff’s Office.”6 Additionally, and significant to the instant Motion for Expedited
Discovery, Plaintiffs have named a number of unknown “Officer Does” whom Plaintiffs allege
served “as Officers of the BRPD, EBRSO, LSP, and other law enforcement agencies who were
involved in the suppression of dissent through the use of excessive force, intimidation, and illegal
arrest of protestors in July 2016.”7 Finally, Plaintiffs have named “Insurance Company Does,”
which “upon information and belief, have issued and currently have in effect one or more policies
of insurance covering one or more of the Defendants named herein.”8
On July 10, 2017, Plaintiffs filed the instant Motion to Conduct Expedited Discovery.9
Plaintiffs contend that while they have “determined the identities of many Defendants via public
records requests and their own investigation, others are still unknown” because affidavits of
probable cause do not identify the arresting officer, the signatures of the officers signing the
affidavits are illegible, and “some Defendants’ insurers are unknown even after public records

4

R. Doc. 5, ¶¶ 35-45.

5

R. Doc. 5, ¶ 60.

6

R. Doc. 5, ¶ 61.

7

R. Doc 5, ¶ 59.

8

R. Doc. 5, ¶ 62.

9

R. Doc. 2.

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requests.”10 Plaintiffs seek leave to issue subpoenas to the “entity defendants” asking three
questions: “(1) The name, job title, and rank of the officers who detained and arrested each
Plaintiff; (2) The name, job title, and rank of the officers who signed the affidavits of probable
cause for each Plaintiff; and (3) The identity of any liability or excess insurer for entity
Defendants.”11 In support of their Motion, Plaintiffs rely on this court’s recent decision in another
suit arising out of the July 2016 protests and alleging wrongful arrest and violation of constitutional
rights, Tennart v. City of Baton Rouge, No. 17-cv-179, United States District Court, Middle
District of Louisiana (“Tennart”), R. Doc. 30 (July 28, 2017 Ruling and Order on Motion to
Conduct Pre-Rule 26(f) Conference Expedited Discovery Regarding Identities of Fictitious
Defendants).
II.

Law and Analysis
Federal Rule of Civil Procedure 45 authorizes the issuance of a subpoena to command a

non-party to attend and testify at a deposition or produce designated documents, electronically
stored information, or tangible things in its possession, custody, or control. Fed. R. Civ. P.
45(a)(1)(A)(iii). “A party or attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”
Fed. R. Civ. P. 45(d)(1). Fed. R. Civ. P. 26(d)(1) provides that, “[a] party may not seek discovery
from any source before the parties have conferred as required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule 26(a)(1)(B) or when authorized by these rules, by
stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). Expedited discovery is not the norm;
however, “in limited circumstances, district courts have allowed expedited discovery ‘when there

10

R. Doc. 2-1, p. 1.

11

See, R. Doc. 2-2, Plaintiffs’ proposed Order granting Motion to Conduct Expedited Discovery.

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is some showing of irreparable harm that can be addressed by limited, expedited discovery.’”
ELargo Holdings, LLC v. Doe-68.105.146.38, 318 FRD 58, 61 (M.D. La. Dec. 1, 2016).
“Although the Fifth Circuit has not explicitly adopted a standard to determine whether a
party is entitled to expedited discovery, several district courts within the Fifth Circuit…have
expressly utilized the ‘good cause’ standard when addressing the issue.” ELargo, 318 FRD at 61
(M.D. La. Dec. 1, 2016) (collecting cases). See also, Wilson v. Samson Contour Energy E&P,
LLC, 2014 WL 2949457, at * 2 (W.D. La. June 30, 2014) (same; collecting cases); BKGTH
Productions, LLC v. Does 1-20, 2013 WL 5507297, at * 4 (E.D. La. Sept. 30, 2013) (same). “The
good cause analysis considers factors such as the ‘breadth of the discovery requests, the purpose
for requesting expedited discovery, the burden on [the responding party] to comply with the
requests and how far in advance of the typical discovery process the request was made.” BKGTH
Productions, LLC v. Does 1-20, 2013 WL 5507297, at * 4 (E.D. La. Sept. 30, 2013). In such
analysis, the court “must examine the discovery request ‘on the entirety of the record to date and
the reasonableness of the request in light of all the surrounding circumstances.’” Id. (citing St.
Louis Group, Inc. v. Metals and Additives Corp., Inc. et al., 275 F.R.D. 236, 239-240 (S.D. Tex.
2011)). “The burden of showing good cause is on the party seeking the expedited discovery.” St.
Louis Group, Inc. v. Metals and Additives Corp., Inc. et al., 275 F.R.D. 236, 240 (S.D. Tex. 2011).
“Moreover, the subject matter related to the requests for expedited discovery should be narrowly
tailored in scope.” Id.
In Tennart, this court allowed limited expedited discovery. There, Plaintiffs explained that
they had initiated public records requests in September and October, 2016, and that mandamus
actions in state court related to enforcement of those requests were filed in March, 2017. Despite
these efforts, Plaintiffs had not received the information sought at the time they filed their motion

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for expedited discovery on June 15, 2017. The undersigned explained that the Tennart plaintiffs
established that they “had diligently pursued other avenues, including a judicial enforcement
action, to obtain the information they seek”12 and concluded that “where such early identification
may avoid naming multiple potentially innocent parties as defendants, good cause exists to allow
Plaintiffs to proceed with some form of expedited discovery.”13
Here, in contrast to Tennart, Plaintiffs issued a public records request to the Baton Rouge
Police Department on June 29, 2017 (i.e., less than two weeks prior to filing their Motion to
Conduct Expedited Discovery).14 It appears that Plaintiffs’ counsel received an initial response to
that request on July 7, 2017.15 At that time, Plaintiffs were told that supplemental reports may be
forthcoming.16 Unlike the plaintiffs in Tennart, Plaintiffs here have not established that they
timely and diligently pursued other avenues to obtain the information they seek, and it appears
based on the documentation attached to their Motion that additional information may be obtained
without the requested subpoenas. Moreover, Plaintiffs have not shown that such information is
unattainable through the use of the usual discovery methods pursuant to the procedures set forth
in the Federal Rules of Civil Procedure, or that the “entity defendants” are unwilling to work with
Plaintiffs to provide the necessary information without the issuance of subpoenas. Under such
circumstances, Plaintiffs have not shown, at least at this juncture of the proceedings, that there is
good cause to divert from the general rule that expedited discovery is not the norm, nor have

12

Tennart, R. Doc. 30, p. 7.

13

Tennart, R. Doc. 30, p. 8 (citing ELargo Holdings, LLC v. Doe-68.105.146.38, 318 FRD 58, 61 (M.D. La. Dec. 1,
2016) (granting request for narrowly tailored expedited discovery after plaintiff showed previous efforts to obtain
identity of actual alleged copyright infringer to avoid naming a potentially innocent party as a defendant in the action)).
14

R. Doc. 2-3.

15

R. Doc. 2-4

R. Doc. 2-4 (“Once we learn that any of the above cases are closed, then we will make supplemental reports
associated with those cases available to you.”).
16

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Plaintiffs shown that they would suffer irreparable harm if such discovery is not allowed on an
expedited basis. Accordingly, Plaintiffs’ Motion to Conduct Expedited Discovery is denied
without prejudice to Plaintiffs’ right to re-urge such motion if Plaintiffs are unable to obtain the
information they need informally and in a timely manner.
III.

Conclusion
For the reasons set forth herein, Plaintiffs’ Motion for Leave of Court to Conduct Limited

Expedited Discovery17 is DENIED without prejudice.
Signed in Baton Rouge, Louisiana, on July 25, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

17

R. Doc. 2.

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