D.B. v. St. Charles County et al

Filing 40

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Production of Documents 33 is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Plaintiff's Motion to Compel Sheriff Tom Neer to Answer Certified Deposition Questions 34 is DENIED. IT IS FURTHER ORDERED that Defendant St. Charles County's Motion for an Order to Compel Disclosure 37 is DENIED. IT IS FURTHER ORDERED that the August 8, 2013 discovery deadline is extended up to and including Tuesday, August 13, 2013 for the limited purpose of complying with the Court's order. ( Discovery Completion due by 8/13/2013.)Signed by District Judge John A. Ross on 8/8/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

D.B.,
Plaintiff,
v.
ST. CHARLES COUNTY, et al.,
Defendants.

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No. 4:12-CV-654-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Production of Documents
[ECF No. 33] and Motion to Compel Sheriff Tom Neer to Answer Certified Deposition
Questions [ECF No. 34], and Defendant St. Charles County’s Motion for an Order to Compel
Disclosure. [ECF No. 37]
In response to Plaintiff’s motion to compel production of documents, Defendant St.
Charles County states that counsel hand delivered the requested documents, subject to its
objections, to Plaintiff’s counsel the morning of August 7, 2013. (Doc. No. 36) Plaintiff replies
that Defendant County has waived any objections to her request for production by failing to
respond within thirty days of being served, pursuant to Fed.R.Civ.P. 34. (Doc. No. 38) In
response to Plaintiff’s reply, counsel for Defendant County states that Plaintiff’s request for
production was sent to Joann Leykam on or about April 11, 2013, that counsel for Plaintiff was
informed on or about April 16, 2013 of a change of counsel for Defendant County on this case,
and that new counsel did not receive any direct contact from Plaintiff’s attorneys until it was
time to schedule Sheriff Neer’s deposition. (Doc. No. 39)

Given the facts and circumstances of this case, the Court finds there has been no waiver
of objections by Defendant County. Plaintiff’s request for production was emailed to Joann
Leykam On April 11, 2013. (Doc. No. 33-1) Counsel for Plaintiff was advised in April of a
change of counsel on this case; however, new lead counsel Beverly Temple received no
notification of the pending document requests until Friday, July 26, 2013, when the email was
forwarded to her. (Doc. No. 33-2) While Sheriff Neer’s deposition was rescheduled twice, no
effort was made by Plaintiff to obtain the requested documents from Defendant County.
Motion to compel production of documents
The Court has reviewed the request for production of documents directed at Defendant
County and Defendant County’s objections and makes the following rulings:
Request for Production No. 1: Plaintiff requests the personnel files or records of
Defendant Jason King. Defendant County has responded to this request.
Request for Production No. 2: Plaintiff requests the files or records concerning any
complaint, charge or allegation, whether lodged by a law enforcement officer or non-law
enforcement officer, about or against Jason King. Defendant County has responded to this
request.
Request for Production No. 3: Plaintiff requests the files or records (excluding those
that are protected by the attorney-client privilege) that refer in any manner to the incident that is
the subject of this lawsuit – specifically, but not limited to, the actions, inactions, or conduct of
Jason King before, during or after his encounter with Plaintiff D.B. In response, Defendant
County states it did not conduct an investigation of the incident, and therefore, has no files or
records. The Court finds this response sufficient and provides no basis for an order to compel.

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Request for Production No. 4: Plaintiff requests a list, for the past 7 years, containing
statistics about the internal affairs function of the St. Charles County Sheriff’s department,
including, but not limited to the number of complaints, the classification or characterization of
the complaints and the disposition of the complaints. Defendant County objects on the grounds
that the request is overly broad, and not reasonably calculated to lead to discoverable, admissible
evidence at trial because a Monell claim takes past behavior into account, and not necessarily
behavior following the incident in question. (Doc. No. 36-1, p. 2) Upon consideration, the Court
will grant Plaintiff’s motion to compel in part and order Defendant County to produce such a list
for the period from January 2006 through December 2007.
Request for Production No. 5: Plaintiff requests the files or records, for the past 7 years,
of each member of the St. Charles County Sheriff’s Department whose employment terminated
in the past seven years, whether by involuntary termination, resignation in lieu of termination, or
resignation while under charges or during an investigation into the conduct of such member,
along with identification of the substance of any charges or investigation against such member.
Defendant County has responded to this request.
Request for Production No. 6: Plaintiff requests the Files or Records, for the past 7
years, of or concerning each sworn member of the St. Charles County Sheriff’s Department who
has been the subject of any complaint, including criminal complaint, and whether the complaint
was lodged by a law enforcement officer or non-law enforcement officer, along with the
substance of the complaint and the disposition of the complaint. Defendant County has
responded to this request with records from January 2006 through December 2007 because a
Monell claim does not encompass future conduct, only past. Because Plaintiff’s request is overly

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broad and not reasonably calculated to lead to discoverable, admissible evidence at trial, the
Court finds Defendant County’s response sufficient and provides no basis for an order to compel.
Request for Production No. 7: Plaintiff requests the files or records of all internal
investigations by the St. Charles County Sheriff’s Department, in the past 7 years. Defendant
County objects on the grounds of attorney-client privilege, and on the grounds that release of
such information would violate the Missouri Sunshine Law, specifically § 610.021.3, RSMo.
2000. Defendant County cites no authority for its position on the Sunshine Law. Further, a
plaintiff alleging police misconduct and a municipal policy condoning such alleged misconduct
is generally entitled to discovery of the internal affairs investigations conducted regarding the
incident complained. See, Rohrbough v. Hall, Case No. 4:07-cv-00996-ERW (Doc. No. 43)
(E.D. Mo. Sept. 18, 2008). Here, however, Plaintiff’s request for seven years of all internal
affairs documents is overly broad, and not reasonably calculated to lead to discoverable,
admissible evidence on her claim arising from an incident in November, 2007. Accordingly, the
Court will not compel Defendant County to produce the requested documents.
Request for Production No. 8: Plaintiff requests the files or records of all criminal
investigations conducted by the St. Charles Sheriff’s Department concerning any member of the
St. Charles County Sheriff’s Department, in the past 7 years. Defendant County responds that it
never conducts investigations of its deputies to avoid even the appearance of impropriety, bias,
and/or a conflict of interest. The Court finds this response sufficient and provides no basis for a
motion to compel.
Request for Production No. 9: Plaintiff requests all training and certification files or
records of Jason King. Defendant County has responded to this request.

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Request for Production No. 10: Plaintiff requests a list that contains identifying
information (Plaintiff, all Defendants, cause number, court) for each lawsuit filed against St.
Charles County or any member of the St. Charles County Sheriff’s Department in the past 7
years arising from any conduct, action or inaction of a member of the St. Charles County
Sheriff’s Department wherein the allegations arose from action or inaction of the member while
on duty or while exercising the power of the member’s office as a sworn peace officer even
though the member was not on duty. This request includes, but is not limited to, suits in which
the member was alleged to have been acting under color of law. Defendant County responds that
Plaintiff has equal access to this information on PACER or Casenet as lawsuits are open, public
records. Further, Defendant County states that it does not necessarily keep a list of the
information requested, so it too would be required to perform a PACER and Casenet inquiry.
The Court will order Defendant County to produce any records it may have responsive to this
request.
Request for Production No. 11: Plaintiff requests the files or records that comprise the
manuals, regulations, directives, general orders, special orders, memoranda or other source,
whether printed or electronically disseminated, concerning the operation of the St. Charles
Sheriff’s Department and/or the conduct, actions or inactions of the members of the St. Charles
County Sheriff’s Department in the past 7 years. Defendant County has responded to this
request.
Motion to compel Sheriff Tom Neer to answer certified questions
In her motion to compel Sheriff Neer to answer certified deposition questions, Plaintiff
seeks answers to three certified questions concerning an internal affairs investigation and/or
discipline of Christopher Hunt, an employee of the St. Charles County Sheriff’s Department,

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arising from a 2009 incident leading to his conviction for burglary, assault and property damage.
Upon consideration, the Court will deny Plaintiff’s motion. In support of her motion, she relies in
part on an order issued by Judge Weber in Rohrbough v. Hall, Case No. 4:07-cv-00996-ERW
(Doc. No. 43) (E.D. Mo. Sept. 18, 2008), ordering disclosure of a number of internal affairs
documents. In his order, Judge Weber instructed that “a plaintiff alleging misconduct by police
officers and a municipal policy condoning such alleged misconduct is entitled to discovery of the
internal affairs investigations conducted by the police department regarding the incident of
which he complains and regarding other similar incidents involving the police department or the
individual police officers about whom plaintiff complains.” (Doc. No. 43, pp. 1-2) (Emphasis
added). The information Plaintiff is seeking about Christopher Hunt is tangential, remote in time
and unrelated in any way to the present case and Plaintiff’s allegations against Jason King. As
such, these answers are not reasonably calculated to lead to discoverable, admissible evidence at
trial.
Motion to compel Defendant Jason King to answer certified questions
In its motion to compel Defendant King to answer certified deposition questions,
Defendant County seeks answers to two certified questions concerning the identity of a
supervisor who offered him Cardinals tickets in exchange for “taking care of” a DWI. At first
King testified that he did not want to say who the supervisor was. He later testified he could not
recall who offered him Cardinals tickets. Under these circumstances, the Court cannot compel a
witness to answer a question when he says he cannot recall.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Production of
Documents [33] is GRANTED in part and DENIED in part.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Sheriff Tom Neer to
Answer Certified Deposition Questions [34] is DENIED.
IT IS FURTHER ORDERED that Defendant St. Charles County’s Motion for an Order
to Compel Disclosure [37] is DENIED.
IT IS FURTHER ORDERED that the August 8, 2013 discovery deadline is extended
up to and including Tuesday, August 13, 2013 for the limited purpose of complying with the
Court’s order.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

Dated this 8th day of August, 2013.

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