Bry v. City of Frontenac, Missouri et al

Filing 151

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Second Motion of Plaintiff Robert Bry for Sanctions or Alternative Motion to Extend and Compel Discovery (ECF No. 121 ) is DENIED without prejudice. The Court will revisit the issue of whether an ad verse inference instruction is warranted, if necessary, at trial. IT IS FURTHER ORDERED that Plaintiff shall verify that he has produced all statements from a defendant or representative of defendant. Plaintiff shall supplement his interrogatory answer identifying all information about party statements within three (3) days of the date ofthis Order. IT IS FURTHER ORDERED that the parties shall complete the depositions of Officer Ford and Keith Cheung within ten (10) days of the date of wh en Defendants receive Plaintiffs supplemental interrogatory answer. IT IS FINALLY ORDERED that, within two (2) days of this Order, Plaintiff shall provide Defendants with an address for Robin Wolfsberger (if he has one) and/or Plaintiff shall facilitate service of a subpoena on Ms. Wolfsberger. The parties shall complete the deposition of Ms. Wolfsberger within ten (10) days of service of the subpoena. Signed by District Judge Ronnie L. White on 11/20/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT M. BRY,
Plaintiff,
vs.
CITY OF FRONTENAC, MISSOURI, et al.,
Defendants.

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Case No. 4:14CV1501 RLW

MEMORANDUM AND ORDER

This matter is before the Court on the Second Motion of Plaintiff Robert Bry for Sanctions
or Alternative Motion to Extend and Compel Discovery (ECF No. 121). This matter is fully
briefed and ready for disposition.
STAND ARD OF REVIEW 1

" [T]o warrant dismissal as a sanction for spoliation of evidence "there must be a finding of
intentional destruction indicating a desire to suppress the truth." Stevenson v. Union Pac. R. Co.,
354 F.3d 739, 746 (8th Cir. 2004) (citing Lewy v. Remington Arms Co., 836 F.2d 1104, 1111-12
(8th Cir.1988)); see also Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir.2004) (noting
under Stevenson "a finding of intent is required to impose the sanction of an adverse inference
instruction"); Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo. 1993) ("The evidentiary spoliation
doctrine applies when there is intentional destruction of evidence, indicating fraud and a desire to
suppress the truth."); Menz v. New Holland N Am., Inc., 440 F.3d 1002, 1006 (8th Cir. 2006).

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The Court is extremely familiar with this case and no factual background is necessary.
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DISCUSSION
In Plaintiffs Motion, he asks the Court to "strike all defendants' answers and enter

judgment in his favor on all claims." based upon the Frontenac Defendants' destruction of relevant
evidence. (ECF No. 121 , if3). Alternatively, Bry asks this Court to enter judgment at minimum
against the City of Frontenac and Officer Ford because "Frontenac has failed and refused to tender
these witnesses for deposition, despite proper notice and repeated indications the depositions
would be forthcoming." (ECF No. 121 , if4). As a final alternative, Bry requests that "this Court
enter an order compelling Frontenac to remedy all prior discovery violations within 20 days, and
grant Mr. Bry at least 120 additional day to disclose expert (likely necessitated by Frontenac' s
destruction of recordings and emails, as well as their violations of SOPs), take depositions, and
amend his claims for relief as may be appropriate in light of all Frontenac' s violations; or, if it
would be easier for the Court' s administration, this Court pursuant to Federal Rule of Civil
Procedure 41 allow Mr. Bry to dismiss and refile his case, but enter an order specifying (a) Mr. Bry
shall not have to reimburse Frontenac any fees and costs when refiling his lawsuit and (b) all
attorney fees and costs Mr. Bry has incurred prior to dismissal shall be recoverable in the
subsequent lawsuit under 28 U.S.C. §1988." (ECF No. 121 , if5).
Plaintiff cites to six different types of wrongful conduct on the part of Defendants:
( 1) Destruction at minimum of dashboard camera, booking/holding area, and interrogation
room records, as well as voicemails;
(2) Belated production of Frontenac Standard Operating Procedures-including several
policies the Frontenac Police have violated in arresting Mr. Bryand failing to record or destroying
recordings of the incident;
(3) Either failing to conduct any reasonable inquiry or concealing the results of an inquiry
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that uncovered Frontenac had readily available written policies relating to the recording and
preservation of recordings in circumstances such as the investigation, arrest, interrogation, and
detention of Mr. Bry;
(4) Postponing depositions based upon claims to do so was appropriate while arguing over
whether Mr. Bry had properly disclosed all "statements" about which he had some direct or
indirect knowledge;
(5) Refusal to tender witnesses, including Frontenac Police Officer defendant Officer Ford
and Frontenac Prosecutor Keith Cheung; and
(6) Failure to produce any emails, and possibly also to preserve emails.2
I.

Destruction of Evidence

As indicated, Plaintiff alleges that Frontenac Police have destroyed or allowed destruction
of at least four types of recordings: dash-cams, interrogation rooms, booking/holding area
cameras, and the Department' s telephone, voicemail, and email systems. The Court finds very
little new information in the Second Motion for Sanctions that was not included in the first motion.
Again, Plaintiffs motion appears to be largely based on conjecture and surmise. See , e.g. , ECF
No. 140 at 2, n.1 ("Mr. Bry suspects at least some calls were recorded ..."); ECF No. 140 at 5
("those officers' systems very likely would have recorded things Mr. Bry and Robin
said")(emphasis added). Defendants indicate that the recordings identified by Plaintiff either did
not exist or that such recordings were recorded over pursuant to department procedures. The
Court denies the motion for sanctions because Plaintiff has not demonstrated that recordings
existed, that they contained exculpatory information, or that they were recorded over in bad faith.

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Plaintiff withdrew his claim that the Defendants failed to produce the paramedic report as a basis
for sanctions. (ECF No. 140 at 16).
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Lewy, 836 F.2d at 1112. Likewise, Defendants have certified that they performed a review of

their email system and no documents related to the September 13, 2013 incident were found.
(ECF No. 147 at 11).
The Court again acknowledges that Defendants have provided no affidavit indicating
whether anyone reviewed any recordings or emails to determine if they contained any relevant or
discoverable material prior to their overwriting or deletion. Absent such a finding, Plaintiff and
the Court are forced to rely on the pure conjecture of Defendants as to what is relevant to Plaintiffs
cause of action. See, e.g. , ECF No. 140 at 5 ("The Frontenac Police' s argument for [the lack of any
dash-cam video], however, is again mere speculation."). Because Defendants have been unable to
articulate whether any tapes or emails existed or what was on said tapes or emails, the Court denies
without prejudice Plaintiffs Motion. If necessary, Plaintiff may refile this motion and the Court
will consider at trial whether an adverse inference instruction is warranted.
II.

Belated Production of Policies

It appears that these policies have been provided and Plaintiff has not identified any
specific prejudice that resulted from the allegedly late production of these policies. Therefore, the
Court will not impose any sanction on this basis.

III.

Allegation that Frontenac Officers Improperly Concealed Information from
St. Louis County Prosecutors to Obtain an Indictment against Plaintiff

Although not specifically enumerated as one of the types of discovery misconduct, the
parties address in their briefing whether the Frontenac Officers "persuaded the County prosecutor
David Truman to promptly file a felony charge against Mr. Bry by mischaracterizing the nature of
the September 2013 incident and omitting, concealing, and misrepresenting information and
evidence gathered at the scene." (ECF No. 122 at 3). Plaintiff also alleges that the "Frontenac
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Police then convinced County prosecutor Megan Julian to pursue this charge [against Plaintiff] and to maintain a no-contact provision in Mr. Bry' s bond - despite Mr. Bry' s and Robin' s repeated
requests to be reunited, thus destroying their marriage." (ECF No. 122 at 3). In response,
Defendants cite to the testimony of Mr. Truman and Ms. Julian, who dispute Plaintiffs account of
the prosecution of his case.
The Court finds that Plaintiff has not provided evidence of sanctionable conduct. At trial,
Plaintiff can provide his version of the events on September 13, 2013 and his subsequent
prosecution, and the jury will make a credibility determination as to which side to believe.
IV.

Depositions of Officer Ford and Keith Cheung

Plaintiff argues that Defendants improperly suspended the deposition of Officer Ford and
refused to tender Keith Cheung in order to prevent damaging and/or perjured testimony. (ECF
No. 122 at 13-14). Plaintiff also argues that Defendants cannot use Plaintiffs incomplete
discovery production as a basis for not allowing the depositions to go forward. In fact, Plaintiff
notes that Defendants had not provided some discovery to Plaintiff at the time Defendants refused
to allow the depositions to go forward. (ECF No. 140 at 14-15).
In response, Defendants claim that they determined that Plaintiff had been "purposefully
withholding opposing party statements, then using them in court filings (such as affidavits) to
substantiate his claims that he is the victim of a police conspiracy" and that "[o]pposing party
deponents were also blindsided with questions about alleged statements during their depositions
and which were never disclosed or provided pursuant to Defendants['] specific discovery
requests." (ECF No. 135 at 21-22). Therefore, Defendants claim that they had no choice but to
cancel the depositions in order to prevent such surprises at depositions.
The Court is concerned by the alleged sandbagging of witnesses with adverse statements
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that were not produced. The Court, however, also wants to ensure that all discovery necessary to
litigate the case is completed. Therefore, the Court will order Plaintiff to provide a complete
response to Defendants' interrogatory regarding any party statements within three (3) days.
Thereafter, the parties will have ten (10) days to complete the depositions of Officer Ford and
Keith Cheung. The Court will not impose any sanctions regarding this issue at this time.

V.

Robin Wolfsberger

Defendants request sanctions against Plaintiff for interfering with scheduling the
deposition of Robin Wolfsberger. (ECF No. 135 at 25-32). Defendants indicate that they had
scheduled Ms. Wolfberger' s deposition in Los Angeles and subsequently agreed to all of the
conditions precedent for her deposition in St. Louis, but that Plaintiff failed to schedule the
deposition or provide Ms. Wolfsberger' s address for service of any subpoena. In response,
Plaintiff contends that Defendants' failure to schedule Ms. Wolfsberger' s deposition is their own
fault because "(a) Frontenac never met her conditions for voluntary testimony and (b) Frontenac
never served her with a subpoena compelling testimony." (ECF No. 140 at 15). Plaintiff asserts
that he does not have a physical address for Ms. Wolfsberger. (ECF No. 140 at 15).
The Court cannot find any direct evidence of sanctionable conduct on the part of Plaintiff
but the Court does not believe that Plaintiff heeded the Court's Order that the parties work together
to make sure that the depositions proceeded in "the most expeditious manner and in the interests of
justice." (ECF No. 99 at 2, n.2). Therefore, the Court affords Defendants additional time to obtain
the deposition testimony of Ms. Wolfsberger. If Plaintiff becomes aware of the physical address
or whereabouts of Ms. Wolfsberger,3 he shall notify Defendants and assist in arranging her

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Plaintiffs knowledge of Ms. Wolfsberger' s physical location seems likely, given that he has
obtained an affidavit from her in support of his case. (ECF No. 122-9).
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deposition.

Accordingly,

IT IS HEREBY ORDERED that Second Motion of Plaintiff Robert Bry for Sanctions or
Alternative Motion to Extend and Compel Discovery (ECF No. 121) is DENIED without
prejudice.

The Court will revisit the issue of whether an adverse inference instruction is

warranted, if necessary, at trial.

IT IS FURTHER ORDERED that Plaintiff shall verify that he has produced all
statements from a defendant or representative of defendant.

Plaintiff shall supplement his

interrogatory answer identifying all information about party statements within three (3) days of the
date ofthis Order.

IT IS FURTHER ORDERED that the parties shall complete the depositions of Officer
Ford and Keith Cheung within ten (10) days of the date of when Defendants receive Plaintiffs
supplemental interrogatory answer.

IT IS FINALLY ORDERED that, within two (2) days of this Order, Plaintiff shall
provide Defendants with an address for Robin Wolfsberger (if he has one) and/or Plaintiff shall
facilitate service of a subpoena on Ms. Wolfsberger. The parties shall complete the deposition of
Ms. Wolfsberger within ten (10) days of service of the subpoena.

Dated this 20th day of November, 2015.

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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