Davis et al v. Detroit, City of et al

Filing 58

ORDER granting in part and denying in part 54 Motion for Order to Show Cause. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY DAVIS AND
HATEMA DAVIS,
Plaintiffs,
v.

Case No. 15-10547
Paul D. Borman
United States District Judge
David R. Grand
United States Magistrate Judge

CITY OF DETROIT, ET AL.,
Defendants.
_____________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO
SHOW CAUSE AND/OR REQUEST FOR A DEFAULT JUDGMENT (ECF NO. 54)
Now before the Court is Plaintiffs’ Amended Motion to Show Cause and/or for
Default Judgment for Defendants’ Failure to Comply with This Court’s Prior Discovery
Orders” filed on January 26, 2016. (ECF No. 54.)
Plaintiffs originally filed their putative class action on February 11, 2015. (ECF No.
1.) In their Complaint, Plaintiffs allege individual members of the Detroit Police Department
violated their constitutional right to be free from unlawful searches and seizures and also
allege that their constitutional rights were violated as a result of the City of Detroit’s
unconstitutional polices, customs, training and/or supervision of its police officers. (Id.) On
July 14, 2015, pursuant to a stipulated order, Plaintiffs filed their First Amended Complaint
which added new defendants and reflected a party substitution. (ECF Nos. 20, 21.)
On June 30, 2015, Defendant City of Detroit moved the Court for a protective order
seeking to preclude or delay discovery of the Defendant City of Detroit’s Internal Affairs

files and files related to homes other than the named Plaintiffs’ home. (ECF No. 18.)
Defendant City of Detroit argued a protective order was needed because the files requested
by Plaintiffs in their requests to produce were part of an “on-going federal and local
enforcement investigation.” (ECF No. 18, at *5-6.) Additionally, Defendant City of Detroit
asserted that the requested documents and information “relative to internal investigations” of
the Detroit Police Department contained privileged information regarding the disposition of
internal police department proceedings. (Id. at *6-7.) Plaintiffs filed a response to Defendant
City of Detroit’s motion. (ECF No. 24.) The motion was referred to Magistrate Judge David
R. Grand. (ECF No. 25.)
Magistrate Judge Grand held a hearing on the Defendant City’s Motion for Protective
Order on September 15, 2015. The same day, Magistrate Judge Grand issued an order
granting in part and denying in party Defendant City of Detroit’s Motion (the “September
Order”). (ECF No. 36.) Magistrate Judge Grand ordered:
Within thirty (30) days of the date of this Order, Defendant shall produce all
documents responsive to Plaintiff’s Request to Produce Nos. 1, 2, 6, and 7. As
set forth on the record, Defendant may redact from such documents
information that is deliberative or evaluative in nature, and thus, protected by
the deliberative process privilege; however, Defendant shall also, within thirty
(30) days of the date of this Order, produce to Plaintiffs a privilege log
detailing the reasons for such redactions. As further detailed on the record, all
of these documents shall be produced subject to the terms of a stipulated
protective order. In all other respects, Defendant’s Motion is DENIED.
(Id.) Neither party filed objections to this Order.
On October 8, 2015, the Court entered the referenced stipulated protective order
which reiterated that: “Defendants shall produce all documents responsive to Plaintiffs’ First

2

request to Produce, dated April 23, [20]15, Nos. 1, 2, 6, and 7, and Plaintiffs’ Second
Request to Produce, dated July 23, 2015, Nos. 1, 2, and 4. Defendant may redact from such
documents information that is deliberative or evaluative in nature and thus, protected by the
deliberative process. Defendant shall provide a privilege log for any and all such redactions
made to the documents produced.” (ECF No. 44, at 2.)
On January 26, 2016, Plaintiffs’ filed the current “Amended Motion for Order to
Show Cause and/or for Default Judgment for Defendants’ Failure to Comply with this
Court’s prior Discovery Orders.” (ECF No. 54.) Plaintiffs assert that on November 3, 2015,
Defendant City of Detroit provided its Supplemental Responses to Plaintiffs’ discovery
requests but violated the September Order when it failed to provide the responsive documents
to Plaintiffs’ First Request to Produce, dated April 23, 2015, No. 7 as it pertained to
Defendant Arthur Leavells. (Pls.’ Mot., Ex. A, Pls.’ First Req. to Produce.)1 Rather than
provide the responsive documents or provide a privilege log as ordered, Defendant City of
Detroit merely stated in its supplemental response: “IA Filed Case No. 14-084 is an open and
pending case.” (Pls.’ Mot., Ex. E, Def.’s Supp. Discovery Resp. to Pls.’ First Req. to
Produce.)
Plaintiffs also assert that Defendant City of Detroit violated the September Order
when it failed to produce any documents, subject to redaction as set forth in the Stipulated

1

Plaintiffs’ First Request to Produce No. 7, provided in pertinent part: “Produce
Defendant’ [sic] complete internal affairs investigative file dated from May 2013 through the
present and relating, in any way, to complaints of any kind, including but not limited to,
obtaining and/or execution of search warrants, unlawful searches and/or seizures ....by members
of Detroit Narcotics Unit including.... (e) Arthur Leavells.”
3

Protective Order, responsive to Plaintiffs’ Second Request to Produce No. 1 relating to the
personnel files of the named individual Defendants. (Pls.’ Mot., Ex. C, Pls.’ First Set of
Interrogatories and Second Req. to Produce.)2
Plaintiffs now request that this Court order Defendant City of Detroit to show cause
for its failure to comply with the September Order and/or sanction Defendant City of Detroit
for its failure to comply by entering a default judgment against it pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A).
Pursuant to Rule 37(b)(2)(A), where a party has failed to obey an order to provide or
permit discovery a court may “issue further just orders” including, inter alia, an order
“rendering a default judgment against the disobedient party.” FED. R. CIV. P. 37(b)(2)(A).
The Sixth Circuit has held that “[j]udgment by default is a drastic step which should be
resorted to only in the most extreme cases.” Bank One of Cleveland, N.A. v. Abbe, 916 F.2d
1067, 1073 (6th Cir. 1990) (citation omitted). Such an action “should be imposed only if the
court finds that the failure is due to willfulness, bad faith, or fault.” Edwards v. City of
Grand Junction, Tenn., 178 F.3d 1294 (6th Cir. 1999) (citation omitted) (Table). A court
should also consider four other factors when determining whether to impose such a sanction:
1) whether the disobedient party acted in willful bad faith; 2) whether the
opposing party suffered prejudice; 3) whether the court warned the disobedient
party that failure to cooperate could result in a default judgment; and 4)
whether less drastic sanctions were imposed or considered.
Grange Mut. Cas. Co. v. Mack, 270 F. App’x 373, 376 (6th Cir. 2008).
2

Plaintiffs’ Second Request to Produce No. 1, provided in pertinent part: “Please produce
complete personnel files for the following Defendants (whether previously or presently)
employed for the City of Detroit....”
4

At this time, the Court finds that the requested default judgment is too severe a
sanction under Rule 37(b)(2)(A). While Defendant City of Detroit has clearly failed to
comply with Magistrate Judge Grand’s September 15, 2015 Order, the Court finds that these
facts do not illustrate the required “extreme case” to justify such a sanction. The Court also
notes that entering a default judgment against Defendant City of Detroit would be unjustified
at this time because Defendant City of Detroit has not been warned a failure to comply with
the September Order could result in such a harsh sanction. Rather, the Court holds that the
appropriate course of action is to order Defendant City of Detroit to comply with the
September Order or show cause in writing for its failure to do so.
For all these reasons, this Court will GRANT IN PART and DENY IN PART
Plaintiffs’ Amended Motion for Order to Show Cause and/or Default Judgment (ECF No. 54)
such that Plaintiffs’ request for an order to show cause is GRANTED but the request for a
default judgment and attorneys fees is DENIED at this time.
Further, the Court ORDERS that Defendant City of Detroit either COMPLY with
Magistrate Judge Grand’s September 15, 2015 Order within twenty-one days of this Order
and supply responsive documents to Plaintiffs’ First Request to Produce No. 7, Plaintiffs’
Second Request to Produce No. 1, and supply Plaintiffs with the appropriate privilege log,
OR SHOW CAUSE in writing within 21 DAYS of the date of this Order for its failure to do
so.
The Court also cautions Defendant City of Detroit that this Order serves as a warning
that further failure to comply with the September 2015 Order or failure to respond to this

5

Order to Show Cause may result in the imposition of a more harsh sanction under Rule
37(b)(2)(A) including, but not limited to, entry of a default judgment.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 3, 2016
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on March 3, 2016.

s/Deborah Tofil
Case Manager

6