O'Rourke v. King et al

Filing 60

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion for reconsideration is GRANTED in part, to the extent that the Court's prior award of $500 in attorneys' fees (ECF No. 55 ) is VACATED. ECF No. 56. Signed by District Judge Audrey G. Fleissig on February 12, 2018. (BRP)

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 matter is before the Court on Defendants’ motion (ECF No. 56) to
reconsider the Court’s January 23, 2018 Memorandum and Order (ECF No. 55), which
granted in part Plaintiff’s renewed motion to compel and for sanctions. The Court
gave careful consideration to the arguments presented by Defendants in response to
Plaintiff’s motion, and again now for reconsideration.
Upon review of Defendants’ motion for reconsideration, the Court continues to
believe that the January 23, 2018 Memorandum and Order was warranted in light of
Defendants’ unexplained delay in their search for and production of the documents at
issue in Plaintiff’s original motion to compel and ordered to be produced by the Court
as relevant to Plaintiff’s municipal liability claims, such as personnel documents of the
officers involved in the incident giving rise to this lawsuit, and other undisputedly
relevant documents, such as the PASS records and additional Special Orders,
apparently not produced until January 2018.
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Moreover, it appears that but for Plaintiff’s renewed motion to compel and for
sanctions, the audio recording of the police dispatch on the night in question might
never have been produced. The Court would have expected Defendants to locate and
preserve this recording upon the filing of the lawsuit, pursuant to their preservation
obligation. Nevertheless, Defendants stated that they had searched for but could not
locate the recording, and repeatedly stated that they had no additional documents to
produce. Defendants’ motion for reconsideration makes evident that it was only after
Plaintiff’s motion for sanctions that Defendants made any concerted effort to locate this
recording. Once Defendants made a reasonable inquiry, the recording was located.
These efforts should have been undertaken in response to Plaintiff’s initial
discovery requests, if not before, and should not have required repeated requests in
correspondence from Plaintiff, a motion to compel, and a further motion for sanctions.
Because a prompt search and production could have avoided further motion practice,
the Court could have entered sanctions in a larger dollar amount, but the Court limited
the sanction to $500 of the reasonable attorneys’ fees incurred in bringing the motion
for sanctions.
However, the Court’s main concern was and is that all parties receive the
discovery to which they are reasonably entitled, proportional to the needs of the case.
And inasmuch as Plaintiff has not opposed or otherwise responded to Defendants’
motion for reconsideration, the Court will grant reconsideration in part, to the extent
that it will vacate the monetary award of attorneys’ fees.
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Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for reconsideration is
GRANTED in part, to the extent that the Court’s prior award of $500 in attorneys’
fees (ECF No. 55) is VACATED. ECF No. 56.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 12th day of February, 2018.

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