Roberson v. McDonald Transit Associates, Inc. et al

Filing 101

ORDER granting in part and denying in part 74 Motion to Compel. Within ten (10) days of this date, defendants shall produce all documents responsive to Request No. 4 above (as limited by the plaintiffs motion to compel with respect to audio/video recordings), including, but not limited to, audio/video records and insurance claim documents. However, if a continuance of the current trial setting is granted in this case, defendants shall have thirty (30) days from this date to produce this discovery. Signed by Magistrate Judge Jane M. Virden on 10/21/15. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
CARROL D. ROBERSON
VS.

PLAINTIFF
CIVIL ACTION NO. 3:14CV00168-NBB-JMV

MCDONALD TRANSIT AND ASSOCIATES, INC., ET AL.

DEFENDANTS

ORDER
Before the Court is Plaintiff’s Motion to Compel [74] certain discovery. The Court has
thoroughly considered the submissions of the parties and the applicable law and, having
conducted a telephonic hearing on October 21, 2015, the Court finds the motion should be
granted in part and denied in part for the reasons that follow.
Plaintiff filed the instant motion to compel August 26, 2015. The discovery period in this
case closed August 14, 2015, however, and the trial is scheduled to begin December 7, 2015.
Despite these considerations–which would substantiate a denial of the motion in most cases–the
Court finds justice will be better served by addressing the substance of the motion, in view of the
nature of the motion and the history of this case.
The following discovery requests are the subject of the plaintiff’s motion to compel:
REQUEST NO. 1: Please provide a true and correct copy of the OUT audio/video
bus recordings depicting the incident which occurred on July 30, 2013, at
approximately 1200 hours at or near the OUT bus shelter on Union Drive across
from the ROTC building. The bus is the Red Line and it was driven by Calvin
Hill (a copy of the complaint submitted to McDonald Transit is attached hereto).
RESPONSE: The “complaint” referred to in Request No. 1 was not attached.
However, the recording requested does not exist because the equipment was not

working at the time of the incident.
By way of his motion to compel, the plaintiff now seeks the physical cartridge and
camera equipment associated with the alleged 7/30/15 incident. But, as the defendants correctly
point out, the plaintiff did not previously request the cartridge and equipment but, instead, only a
copy of the video depicting the subject incident. Because it was not previously requested, the
cartridge and physical camera are not properly the subject of a motion to compel, and the request
for the same, coming after the close of discovery is untimely.
REQUEST NO. 4: ALL DOCUMENTS in the possession or control of
Defendant which relate to complaints submitted to Defendant by the Plaintiff.1
RESPONSE: Objection based on relevance, failure to limit scope and time,
attorney/client privilege, attorney work product and material prepared in anticipation of
litigation. Defendant also objects to this request to the extent it seeks to discover
information or materials that may be, and are, equally – or more – accessible to Plaintiff.
Without waiver, see attached documents bates numbered 0001-0033.

Plaintiff complains that Defendant McDonald Transit’s response above is inadequate
because it did not produce all audio/video recordings related to complaints submitted to said
defendant by the plaintiff. The Court agrees with the plaintiff.
In their response to plaintiff’s motion to compel, defendants represented to the Court that
the subject discovery request did not encompass audio/video recordings, only “DOCUMENTS.”
However, upon the Court’s own inquiry into the matter–by way of requesting from Plaintiff

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Subsequently, Defendant McDonald Transit supplemented with documents which it
contends show that the hard drive for the video recording system was sent back to the
manufacturer and the manufacturer was unable to retrieve the requested video.
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complete copies of his discovery requests–the Court determined defendants’ representation is
indeed not accurate, as the definition section of the plaintiff’s discovery requests specifically
defines documents as including electronic recordings, computer hard drives, computer files,
audio tapes, and videotapes, among other items. During the hearing on this matter, counsel for
defendants provided neither a satisfactory explanation for failure to produce audio/video
recordings responsive to plaintiff’s discovery requests nor an explanation for the gross
misrepresentation to the Court.
As a related issue, the Court is also disturbed by the fact that during a settlement
conference held October 7, 2015, defendants, for the first time, disclosed a University Police
Department incident report related to the subject July 30, 2013 incident; and, during the
telephonic hearing on the instant motion, their counsel announced that defendants have recently
discovered cell phone video footage related to that incident. All of this information is responsive
to the plaintiff’s discovery requests, and defendants could not provide an acceptable explanation
for its late disclosure.
In view of the foregoing findings, it is ORDERED that within ten (10) days of this date,
defendants shall produce all documents responsive to Request No. 4 above (as limited by the
plaintiff’s motion to compel with respect to audio/video recordings), including, but not limited
to, audio/video records and insurance claim documents. However, if a continuance of the current
trial setting is granted in this case, defendants shall have thirty (30) days from this date to
produce this discovery. If defendants withhold any document under a claim that it is privileged,
defendants shall within the applicable time frame (either 10 or 30 days from this date) produce
the document(s) to the undersigned for in camera inspection.

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Finally, to the extent the plaintiff attempted to supplement the instant motion to compel
by raising issues in his Supplement [98] that were not the subject of the original motion, that
portion of the motion is denied as untimely filed.
This 21st day of October, 2015.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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