Davis v. Rouse et al

Filing 131

MEMORANDUM. Signed by Magistrate Judge Stephanie A Gallagher on 2/13/12. (mps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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BENJAMIN DAVIS,
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Plaintiff,
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Case No. WDQ-08-3106

v.
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NANCY ROUSE, et al.,
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Defendants.
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MEMORANDUM
This Memorandum addresses Plaintiff’s Motion to Compel Identification of Persons with
Knowledge and Discoverable Information [ECF No. 120], and Plaintiff’s Motion to Compel
Correspondence to and from Public Officials [ECF No. 116]. I am extensively familiar with this
matter, which has been referred to me to adjudicate all motions raised in what has become an
extremely contentious discovery process. I have reviewed the submissions relating to the instant
motions, and held telephonic conferences on February 2, 2012 and February 7, 2012. I also
reviewed follow-up correspondence from the parties [ECF Nos. 127, 128, 129, 130]. For the
reasons stated herein, Plaintiff’s Motion to Compel Identification of Persons with Knowledge
and Discoverable Information is GRANTED in part and DENIED in part. Plaintiff’s Motion to
Compel Correspondence to and from Public Officials is DENIED.
Motion to Compel Identification of Persons with Knowledge and Discoverable Information
Plaintiff’s objection relates to the adequacy of Defendants’ responses to certain
Interrogatories served on December 9, 2010. Specifically, Interrogatory Nos. 9 and 10 to

Warden Rouse, Interrogatory No. 10 to Secretary Maynard, and Interrogatory Nos. 11 and 13 to
Lt. Harsh (“the enumerated interrogatories”) asked the Defendants to identify persons with
personal knowledge or discoverable information relating to the matters at issue in the case.
Plaintiff defined “identify” by requiring Defendants to “state the person’s full name, present or
last known home address and telephone number, and present or last known business address and
telephone number.” Following some consultation and agreed extensions between the parties,
Defendants served supplemental answers to those interrogatories on April 13, 2011. On April
29, 2011, Plaintiff served a Third Motion to Compel Discovery on Defendants, which requested,
among other things, more complete responses to the enumerated interrogatories. Defendants
responded to that Motion to Compel on May 13, 2011, and the parties conferred and resolved
some of the issues that had been raised.
More than seven months later, on December 22, 2011, Plaintiff wrote to Defendant and
again requested further responses to the enumerated interrogatories. In that letter, Plaintiff
demanded certain responses “by 12:00 noon on December 27, 2011” and stated that “if full and
complete responses to the [enumerated interrogatories] are not provided by 5:00 p.m. on
December 30, 2011, Plaintiff will bring an appropriate motion.” [ECF No. 120-1, Exh. 4].
Without even waiting until 5:00 p.m. on December 30, 2011, Plaintiff served a motion to compel
on December 29, 2011. [ECF No. 120-1 at 22]. That motion is currently one of several
discovery motions pending before this Court.
Without question, Defendants did not answer the enumerated interrogatories in the
manner directed by the instructions. Defendants did not provide a list of persons at any time, and
instead provided a narrative and a series of documents containing names of more than eighty
individuals with knowledge. During the telephonic hearing regarding this motion and in

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subsequent correspondence from Defendants’ counsel, it has become evident that there is no
complete list identifying individuals with personal knowledge or discoverable information. By
virtue of the interrogatories, Plaintiff is entitled to such a list, and is further entitled to
supplementation of that list as required if circumstances change prior to the close of discovery.
Within fourteen (14) days of the date of this order, Defendants are directed to provide
complete lists of the names and the requested identifying information for all persons responsive
to the enumerated interrogatories, along with either a brief summary of the facts known by each
individual or a reference to a particular document containing a brief summary of the facts known
by each individual. However, if the appropriate contact information for a particular individual is
the Roxbury Correctional Institution, no additional contact information need be provided. If any
individual is not included on the lists, or on a supplemental answer to the interrogatories
submitted in a timely fashion, Defendants will not be permitted to call that individual as a
witness at trial or to submit an affidavit from that individual in support of dispositive motions.
The other remedies sought by Plaintiff, however, are inappropriate. Plaintiff’s motion
appears to have been motivated in part by the depositions of Corrections Officer Brumage and
Lieutenant Gonzales, each of whom referenced a group of unknown individuals during their
testimony. There is no evidence that Defendants have any knowledge of the identities of the
individuals mentioned by Corrections Officer Brumage and Lieutenant Gonzales. There is no
evidence that Defendants have concealed any identities or any contact information of prospective
witnesses. By virtue of timely providing reports and other documents to Plaintiff, Defendants
effectively provided the names of known individuals who may have relevant knowledge, and
Defendants have been responsive in providing contact information when requested. In fact, in
totality, those documents provide the same information that is likely to be provided on the list to

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be submitted by Defendants in response to this order. Limiting Defendants to witnesses
specifically identified in the current versions of their answers to the enumerated interrogatories
would be elevating form over substance in a manner that is unfair, particularly where discovery
is ongoing and supplementation is still permissible.
In addition, the parties collectively addressed the deficiencies with respect to the
enumerated interrogatories in May of 2011, when just under one year remained before the
discovery deadline. Despite what appears to be his continued belief that Defendants’ responses
were inadequate, Plaintiff waited approximately seven months to inform Defendants of his
continued dissatisfaction and to demand a full response.1 Plaintiff then served a motion to
compel even before the deadline that Plaintiff had unilaterally imposed for Defendants to
respond to his letter.
Clearly, had this issue been addressed in the summer of 2011 instead of early 2012, fewer
depositions would have taken place and supplemental answers could have been provided on a
more frequent and regular basis. It would be unfair to penalize Defendants for Plaintiff’s delay
in raising this issue with the Court, which violated Discovery Guideline 1.f of the Local Rules of
this Court. Moreover, Plaintiff’s handling of the issue in December of 2011 also falls short of
the requirements of cooperation and civility described in the Discovery Guidelines of the Local
Rules. See Guidelines 1.a, 1.d, 1.f. The Discovery Guidelines have been cited repeatedly to the

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 A repeated theme in the multitude of motions filed with this Court is Plaintiff’s insistence on
prompt action by the Defendants during the holiday season. As Defendants have noted in several
filings, state offices were closed on various dates during that time frame, and Defendants’
counsel, like many people, was out of the office for some period of time. Acting with
cooperation and civility includes making allowances for reasonable boundaries between
opposing counsel’s professional responsibilities and personal life. Setting quick, unilateral, and
inflexible deadlines during the last week in December does not constitute the type of cooperative
effort envisioned in the Guidelines.

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parties in this case, and the parties are once again ORDERED to review those guidelines and to
attempt to abide by them.
For those reasons, although Plaintiff’s motion is granted in part as described above,
given Plaintiff’s conduct in December 2011, there is some question as to whether “the movant
filed the motion before attempting in good faith to obtain the disclosure or discovery without
court action.” Fed. R. Civ. Proc. 37(a)(5)(A)(i). In any event, the violations of the Discovery
Guidelines by Plaintiff described above make an award of expenses unjust. See Fed. R. Civ.
Proc. 37(a)(5)(A)(iii).
Motion to Compel Correspondence to and from Public Officials
Plaintiff’s motion asks this Court to order Defendants to produce all correspondence
received from or directed to Congressman Elijah Cummings and the Governor regarding Plaintiff
Benjamin Davis. At the telephonic hearing in this matter, Defendants detailed the steps they had
taken to attempt to locate and produce responsive documents. Despite Defendants’ efforts, some
of the documentation could not be found within Defendants’ possession, custody, or control. On
their own initiative, Defendants had contacted the Governor’s office and requested any
responsive materials maintained by that office.

At the Court’s request, Defendants also

contacted Congressman Cummings’s office and made the same request.

Responsive

documentation from both entities has now been provided to Plaintiff.
There is no evidence that Defendants were less than diligent in attempting to respond to
Plaintiff’s request, and there is no evidence of spoliation of evidence. For those reasons, and
because Plaintiff has now received the documentation from alternative sources with Defendants’
assistance, Plaintiff’s motion to compel is DENIED.

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Dated: February 13, 2012

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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