Provenzino et al v. Taylor, City of et al

Filing 42

ORDER Deeming RESOLVED in part GRANTING in part and DENYING in part 37 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES PROVENZINO and HERSHELL
ELSWICK,
Plaintiffs,

Case No. 2:16-cv-13481
District Judge David M. Lawson
Magistrate Judge Anthony P. Patti

v.
CITY OF TAYLOR, JAMES PILCHAK,
MATT MINARD, JASON HALL,
NICHOLAS SELLITTI, and KEITH
O’CONNOR,
Defendants.
___________________________________/
ORDER DEEMING RESOLVED IN PART, GRANTING IN PART, and
DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL (DE 37)
Plaintiffs’ March 16, 2017, first amended complaint names six defendants:
City of Taylor, James Pilchak, Matt Minard, Jason Hall, Keith O’Connor, and
Nicholas Sellitti. The facts underlying the amended complaint concern the alleged
events of May 26, 2015. In particular, Plaintiffs allege that Defendants engaged in
(I) excessive force; (II) unreasonable seizure without probable cause; and (III)
constitutional violations. (DE 27.)
Currently before the court is Plaintiffs’ May 1, 2017 motion to compel,
regarding which a response and reply have been filed. (DEs 37, 40, 41). Judge

Lawson referred this motion to me for hearing and determination, and a hearing
was noticed for May 30, 2017. (DEs 38, 39.)
On the date set for hearing, attorneys Amy J. DeRouin and Jonathan F.
Karmo appeared. After engaging in a meet and confer conference in my jury room
at the Court’s direction, during which the parties’ attention was drawn to this
Court’s decision in Sw. Metals, Inc. v. City of Detroit, No. 2:15-CV-11080, 2016
WL 5477313, at *1 (E.D. Mich. Sept. 29, 2016), counsel for the parties informed
the Court that they had resolved several of the matters that had been the subject of
Plaintiffs’ motion. Counsel placed an agreement as to these matters on the record
and will submit a related stipulation and order. Accordingly, Plaintiffs’ motion is
DEEMED RESOLVED with respect to the deposition of Edward Shalda, as well
as Plaintiffs’ first set of interrogatories Nos. 15 and 16 and the related requests for
production of documents.
As to the remaining issue – “complete audio and video recordings of the
subject incident,” which were arguably the subjects of Interrogatory No. 18 and
Request for Production of Documents Nos. 19 and 28 - Plaintiff’s motion (DE 37)
is GRANTED IN PART and DENIED IN PART. Specifically, no later than
June 15, 2017, Defendant City of Taylor SHALL supplement its written response
to Interrogatory No. 18, signed and under oath, by:
(a)

identifying all motor vehicles and officers at the scene of the
events in question;
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(b)

as to each such motor vehicle or officer:
i.

, describing what audio and/or video recording
equipment was present, including but not limited to any
and all “dash cams” and lapel microphones;

ii.

listing both whether an audio or video recording was
made and is available from such equipment;

iii.

if such a recording was made or is available, indicating
whether it was produced or, if not produced, why;

iv.

if such a recording is not available, indicating: why not
(e.g., recorder was out of range and specifying the length
of such range, recorder was not turned on, retention
policies, etc.); whether metadata exists from that device
that will show that an audio or video recording existed
and/or exists related to the subject incident; and, if so,
where such metadata is located; and

v.

if information existed at one time but has since been
deleted, then explaining why it was not preserved and
when it was deleted and destroyed.

Plaintiff is shall issue its related deposition notice or notices to Defendant City of
Taylor pursuant to Fed. R. Civ. P. 30(b)(6) forthwith, or in any case, no later than
June 19, 2017, so that Defendant may thereafter designate a witness or witnesses
in accordance with the Rule and make any such witnesses available for deposition
on or before June 30, 2017.
At this time, any request by Plaintiffs for “Entry on Land in order for
Plaintiffs’ counsel and expert to inspect the subject vehicles, video/audio recording
devices, and computers where this information would be stored[,]” (DE 41 at 7), is
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DENIED WITHOUT PREJUDICE. Some questions were left unasked at the
deposition; as such, the Court does not have enough information about the audio
and video recordings at issue here to determine whether such inspection is
warranted.

In addition, Defendants’ request for an award of costs, including

attorney fees (DE 40 at 3, 14), is DENIED, because the issue on which the Court
opined involved a genuine dispute and merited judicial review, thus making an
award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(iii).
Finally, the Court having considered the issues presented by this motion and
the likelihood that privilege will be asserted during the course of discovery, the
parties are strongly encouraged to enter into a stipulated protective order governing
the exchange of information in this case. Although the Court expects that counsel
for the parties will be able to arrive upon an agreement as to the terms of such an
order, the parties may file an appropriate motion if they are unable to do so. In
either case, they are advised to review the Undersigned’s Practice Guidelines
relating to “Protective Orders.”
IT IS SO ORDERED

Dated: May 31, 2017

s/Anthony P. Patti
ANTHONY P. PATTI
UNITED STATES MAGISTRATE JUDGE

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I hereby certify that a copy of the foregoing document was sent to parties of record
on May 31, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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