O'Rourke v. King et al

Filing 55

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs renewed motion to compel and forsanctions is GRANTED in part, as follows. ECF No. 49 . (SEE ORDER FOR DETAILS). Signed by District Judge Audrey G. Fleissig on 1/23/18. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SCOTT O’ROURKE,
Plaintiff,
vs.
DAVID KING, et al.,
Defendants.

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Case No. 4:16-CV-01795-AGF

MEMORANDUM AND ORDER
This action under 42 U.S.C. § 1983 arises out of the arrest, detention,
prosecution, and acquittal of Plaintiff following his engagement in a political protest on
May 24, 2012. The matter is now before the Court on Plaintiff’s renewed motion (ECF
No. 49) to compel discovery responses from Defendants, and for sanctions against
Defendants for failing to comply with the Court’s December 22, 2017, Memorandum
and Order (ECF No. 48) granting in part Plaintiff’s prior motion to compel (ECF No.
38). In that Order, the Court required Defendants to produce, no later than January 5,
2018, any outstanding documents in their possession, custody, or control responsive to
the discovery requests at issue in Plaintiff’s motion, or if all such documents had been
produced, a letter to Plaintiff certifying that fact.
On January 5, 2018, Defendants’ counsel sent Plaintiff an email stating that
“[f]ollowing up on the Court’s Memorandum and Order of December 22, 2017, this
shall confirm that our clients do not have additional documents in their possession that
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are responsive to the discovery requests at issue in Plaintiff’s motion to compel.” ECF
No. 50-2. Nevertheless, on January 10 and 12, 2018, after Plaintiff filed this renewed
motion to compel and for sanctions, Defendants produced additional responsive
documents, including personnel records for the named Defendants, organizational
charts, and “CFS” reports1 from May 24 through May 25, 2012. In the January 10,
2018, email production to Plaintiff, Defendants’ counsel also stated that his clients were
“double-checking to see if [they have] any additional records responsive” to the
discovery requests. ECF No. 54-1. And in their brief before this Court, Defendants
state that they have “searched for, but as of this time ha[ve] been able [sic] to locate an
audio recording of the police radio dispatch pertaining to the scene of the protests on
May 24-25, 2012.” ECF No. 52 at 2.
Defendants do not explain what search efforts they have made to “double check”
whether their production is complete, or why such search efforts were not made earlier.
Nor do they explain why the documents produced on January 10 and 12, were not
produced earlier.
In his current motion, Plaintiff seeks an order compelling Defendants to produce
any outstanding documents that are responsive to the discovery requests at issue in
Plaintiff’s original motion to compel (ECF No. 38) and that are accessible in
Defendants’ computer and records management systems. Plaintiff also seeks sanctions

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Defendants do not explain what these reports are.
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in the form of attorneys’ fees and expenses.2 In response, Defendants argue that they
have been forthcoming and cooperative with Plaintiff throughout the discovery process.
A district court may impose sanctions for discovery violations pursuant to
Federal Rule of Civil Procedure 37 or pursuant to its “inherent authority to fashion an
appropriate sanction for conduct which abuses the judicial process.” Duranseau v.
Portfolio Recovery Assocs., 644 F. App’x 702, 707 (8th Cir. 2016).
The Court has previously held that the discovery requests at issue in Plaintiff’s
original motion to compel were relevant to Plaintiff’s municipal liability claim and
within the scope of discovery permissible under the Federal Rules of Civil Procedure.
Although Defendants have at various times asserted that they have fully responded to
the discovery requests, their continued and belated production of relevant documents
belies these assertions. Defendants have offered no excuse for waiting until after the
motion for sanctions was filed to search for additional responsive documents.
Discovery closed on December 1, 2017, and the Court ordered Defendants to produce
any outstanding responsive documents by January 5, 2018.
Because Defendants did not comply with the Court’s Order, and have provided
no justification for their non-compliance, the Court finds that sanctions in the form of
reasonable attorneys’ fees incurred in bringing the current motion are appropriate, and
will further grant Plaintiff’s motion as set forth below.
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Plaintiff does not specify whether he seeks the attorneys’ fees and expenses
incurred in litigating his original motion to compel, this renewed motion to compel, or
both.
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Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s renewed motion to compel and for
sanctions is GRANTED in part, as follows. ECF No. 49.
1.

On or before January 30, 2018, Defendants shall conduct a diligent

search and produce to Plaintiffs any outstanding documents in their possession,
custody, and control responsive to the discovery requests at issue in Plaintiff’s original
motion to compel (ECF No. 38).
2.

On or before January 31, 2018, Defendants shall produce to Plaintiffs a

sworn affidavit identifying and describing the means they employed to search for
responsive documents in their possession, custody, and control, including the audio
recording of the police radio dispatch referenced above; and stating that they have
produced all responsive, non-privileged documents identified in that search.
3.

Plaintiff’s motion for sanctions is GRANTED in part, in the amount of

$500.
IT IS FURTHER ORDERED that Plaintiff’s response to Defendants’ motion
for summary judgment shall be due no later than February 21, 2018, and any reply
shall be due no later than March 7, 2018.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of January, 2018.

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