Sondey v. Wolowiec et al
Filing
47
MEMORANDUM AND ORDER GRANTING DEFENDANTS MOTION FOR A PROTECTIVE ORDER (Doc. 37) AND DENYING PLAINTIFFS MOTION TO STRIKE AND TO COMPEL (Doc. 42). Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARREN SONDEY, as Personal
Representative of the Estate of
THOMAS F. SONDEY, deceased.
Plaintiff,
vs.
Case No. 14-13808
OFFICER CHAD WOLOWIEC,
OFFICER TODD BENCZKOWSKI,
OFFICER MICHAEL HUDDAS,
OFFICER DARRYL BAGIANO,
OFFICER THADDEUS LAMBIRIS,
HON. AVERN COHN
Defendants.
___________________________________/
MEMORANDUM AND ORDER
GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER (Doc. 37)
AND
DENYING PLAINTIFF’S MOTION TO STRIKE AND TO COMPEL (Doc. 42)1
I. Introduction
This is a civil rights case arising under 42 U.S.C. §1983, §1988. Darren Sondey,
on behalf of the estate of Thomas F. Sondey (Sondey) is suing City of Warren police
officers Chad Wolowiec, Todd Benczkowski, Michael Huddas, Darryl Bagiano, and
Thaddeus Lambiris for events leading to Sondey’s death while in custody. Plaintiff says
that from various defendants' initial contact with Sondey through the time of his death,
he exhibited symptoms of a serious medical condition that defendants ignored.
Before the Court are two discovery motions:
1
Upon review of the parties’ papers, the Court deems these matters appropriate
for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
1.
Defendants’ Motion for a Protective Order (Doc. 37)
2.
Plaintiff’s Motion to Strike and to Compel (Doc. 42)
For the reasons that follow, defendants’ motion will be granted and plaintiff’s
motion will be denied. The Court will also enter the protective order attached as Exhibit
A to defendants’ response to plaintiff’s motion. See Doc. 44-2.
II. Motion for Protective Order
A. Background
Defendants ask that the Court preclude or limit the scope and length of the
deposition of retired police officer Kimberley Teolis. Teolis is not named as a
defendant. However, she was one of the officers who is alleged to have attempted to
save Sondey’s life after he entered into cardiac arrest. In an affidavit attached to the
motion, Teolis states that she suffered a traumatic brain injury in a car accident on
January 13, 2014 and continues to experience mental limitations. As a result, she did
not appear at her previously scheduled deposition, but instead sent medical reports
identifying cognitive and memory issues that make a deposition impracticable.
Defendants say that a deposition would be dangerous to Teolis' health, that her
deposition would not lead to the discovery of relevant evidence because she has little to
no recollection of the incident, that the information plaintiff seeks has already been
provided by police station surveillance videos, and that the parties have exchanged
written discovery and completed nearly all other depositions. Defendants also attached
letters from Teolis' treating physicians and others who examined her stating that a
deposition would not be medically appropriate.
In response, plaintiff says that while the surveillance videos showed Teolis going
2
into Sondey’s jail cell, calling for help, and initiating CPR, they did not provide any
information about what she saw or how Sondey appeared before and during their
interaction. Plaintiff also contends that even if Teolis has no recollection of the incident,
she should still be deposed because plaintiff is entitled to know the extent of her
recollection. Plaintiff further says that none of the physicians state that Teolis would be
unable to testify or that undergoing a deposition would harm her. Plaintiff also notes
that if Teolis was competent to sign an affidavit, she is capable to appear at a deposition
and testify as to her recollection.
In their reply brief, defendants have attached an additional medical report dated
January 12, 2016 from Dr. Jay Kaner, one of the doctors who submitted a letter
attached to the original motion. Dr. Kaner states that in his opinion, it is not medically
advisable for Teolis to undergo a deposition because of her brain injury and ongoing
neurological symptoms, and that the stress of a deposition may exacerbate her
cognitive issues and cause a clinical setback.
B. Legal Standard
Fed. R. Civ. P. 26(c) provides in pertinent part:
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move
for a protective order in the court where the action is pending -- or as an
alternative on matters relating to a deposition, in the court for the district where
the deposition will be taken. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court action. The court may, for
good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or more
of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place or the allocation of expenses, for
3
the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party
seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters;
....
The party seeking a protective order bears the burden of establishing good cause
and a specific need for protection. Schorr v. Briarwood Estates Ltd. P’ship, 178 F.R.D.
488, 491 (N.D. Ohio 1998). “In seeking to prevent or delay a deposition on medical
grounds, the moving party has the burden of making a specific and documented factual
showing that the deposition will be dangerous to the deponent's health.” Id. (citations
omitted).
C. Resolution
The motion is GRANTED. Defendants have furnished sufficient medical
evidence to establish a factual showing that a deposition would pose a health risk to
Teolis. Dr. Kaner’s January 12, 2016 letter makes clear that a deposition would be
harmful to Teolis. However, as a reasonable alternative to a deposition, plaintiff shall
submit no more than 10 interrogatories to Teolis regarding her knowledge of the
relevant events.
III. Motion to Strike and to Compel
A. Background
Plaintiff moves to strike defendants' objections to plaintiff's second discovery
request and to compel defendants' production of responses to the request. Plaintiff
says that on October 28, 2015, defendants were served with a second discovery
request for documents. Plaintiff says that, in addition to being one month late,
4
defendants’ response included non-responsive, evasive, and incomplete answers, and
did not include the requested documentation. Plaintiff further says that defendants will
not produce the requested documentation until plaintiff agrees to a protective order.
Plaintiff, however, contends that defendants have not established good cause or the
need for a protective order.
In response, defendants say that documents at issue have already been
produced and/or will be produced under a protective order. Defendants say that the
requested documents were within the custody and/or control of the non-party City of
Warren. As a result, while defendants could have responded "none" to the requests to
produce, they instead offered to produce the documents subject to the entry of a
protective order. Defendants contend that the Court should not compel the documents
absent a protective order. Defendants say that a protective order is appropriate for the
information requested. Defendants also contend that a late discovery response does
not, as plaintiff argues, automatically waive defendants' right to object. This is
particularly so in light of the fact that defendants have not objected outright to the
production of documents, but have instead agreed to produce them subject to a
protective order.
B. Legal Standard
Fed. R. Civ. P. 37(a) permits a party to move for an order compelling disclosure
or discovery. As noted above, the Court under Rule 26(c) provides that the court may,
for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1).
This Rule confers broad discretion on the trial court to decide when a protective order is
5
appropriate and what degree of protection is required. Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984).
The party seeking protection bears the burden of demonstrating that there is
good cause for restricting the disclosure of the information at issue. In re Violation of
Rule 28(D), 635 F.3d 1352, 1357 (Fed. Cir. 2011). For good cause to exist, the party
seeking to limit the disclosure of discovery materials must show that specific prejudice
or harm will result if no protective order is granted. Id. at 1357–58 (citing Phillips v. Gen.
Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002)).
C. Resolution
Plaintiff’s motion is DENIED. First, the Court in its discretion finds that
defendants did not waive the right to object despite giving a late response to the
discovery request. Second, defendants have not refused to supply the discovery; they
simply say they will do so upon entry of a protective order. This is a reasonable
request. The information is within the control of the City of Warren and contains law
enforcement information which is properly the subject of a protective order. The Court
shall enter the protective order attached as Exhibit A to defendants’ response.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: February 26, 2016
Detroit, Michigan
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?