Smith v. Kilgore et al

Filing 54

ORDER denying 53 motion for discovery Signed on August 18, 2016 by Magistrate Judge Sarah W. Hays. (Clinton, Erica)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
TINA SMITH, INDIVIDUALLY AND AS
NATURAL MOTHER AND LAWFUL
HEIR OF RAYMOND A. SMITH JR.,
DECEASED;
Plaintiff,
v.
MICHAEL KILGORE, et al.,
Defendants.

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Case No. 14-00785-CV-W-SWH

ORDER
Now before this Court is Plaintiff’s Motion for an in Camera Review of Documents (Doc.
#53). On June 14, 2016, this Court held a telephone conference regarding Plaintiff’s Motion to
Compel Production of Documents from Defendant (Doc. #48). Defendant objected to producing and
withheld certain pre-employment records on the grounds that the request for production was “overly
broad in time and subject matter. Further, this [request/interrogatory] is overly broad in that it
requests information that is not relevant to any party’s claim or defense. The requested information is
not important in resolving any issue in this case.” (Doc. #48-2, 5, 12, 14) Defendants also objected
because certain requests were for an unrelated timeframe or subject matter and may contain
documents of a sensitive nature. (Doc. #48-2, at 5, 12, 14) At that time this Court denied the motion
except in regards to any material that would show a propensity toward violence, assaultive behavior,
and/or excessive force. (Doc. #52) This Court further ordered the defendants to produce a document
log of all documents, including those documents which have not been produced. (Doc. #52)
In her motion for an in camera review, plaintiff asserts that defendants’ notation on the
document log relating to certain pre-employment records is not helpful in determining whether “the
propensity to be aggressive is presented . . . .” (Doc. #53 at 2) Plaintiff further identified a number of

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factors 1 which she apparently believes would assist her in determining whether the officers involved
had a propensity toward violence, assaultive behavior, and/or excessive force. (Doc. #53 at 2-3)
Defendant has not filed a response to Plaintiff’s Motion for an in Camera Review of Documents.
Discovery of non-privileged material is permissible where such material is “relevant to any
party’s claim or defense and proportional to the needs of the case, considering the important of the
issues at stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P.
26(b)(1). “[A]fter the proponent of discovery makes a threshold showing of relevance, the party
opposing a motion to compel has the burden of showing its objections are valid by providing specific
explanations or factual support as to how each discovery request is improper.” Cincinnati Ins. Co. v.
Fine Home Managers, Inc., No. 4:09CV234-DJS, 2010 WL 2990118, at *1 (E.D. Mo. July 27, 2010).
The Eighth Circuit has found that a police officer’s personnel file contains confidential information
which should not be released absent a clear reason for doing so. Donald v. Rast, 927 F.2d 379, 381
(8th Cir.1991).
In its June 14, 2016 order, this Court determined that only the pre-employment records that
are to be produced are those records showing a propensity toward violence, assaultive behavior,

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Those factors include: “What motivated the candidate to choose law enforcement; Issues of
drug use; Personal biases of the candidate; Ability to tolerate stress; Whether the candidate is
risk averse to certain groups; Whether the candidate is sensation/ thrill seeker; Whether the
candidate has certain paranoias; Whether the candidate has obsessive compulsions; Whether the
candidate has psychopathic impulsive tendencies; Whether the candidate has antisocial
personality disorder; Whether the candidate has psychopathic deviant tendencies; Whether the
candidate suffers from depression; Whether the candidate is schizophrenic; What triggers the
candidates anger; When did the candidate lose the candidate’s cool; Whether the candidate
suffers from hypomania; Candidate’s view of when it is appropriate to use physical force;
Whether the candidate has impulse control; The candidate’s conflict resolution skills; Whether
the candidate was motivated by a desire for power or authority when the candidate applied to
join the force; Whether the candidate has difficulty dealing with mundane tasks and is primarily
motivated by excitement.” (Doc. #53 at 2-3)
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and/or excessive force. (Doc. #53 at 2-3) Although, plaintiff lists a number of factors that she
contends may show such a propensity, she has not shown that any of those factors actually show a
propensity toward violence, assaultive behavior, and/or excessive force. (Doc. #53 at 2-3) In fact if
plaintiff were successful in obtaining information related to the listed factors, it would in effect
broaden this Court’s June 14, 2016 ruling as to what pre-employment records are relevant and
discoverable.
Furthermore, plaintiff has provided no reason why this Court should disregard defendants’
assertion that the documents do not contain any evidence of a propensity toward violence, assaultive
behavior, and/or excessive force. As one court has noted, “[o]ur judicial system generally relies on
litigants to tell the truth and participate in discovery in good faith.” McMunn v. Mem'l SloanKettering Cancer Ctr., 191 F. Supp. 2d 440, 445 (S.D.N.Y. 2002); see also Speckman v. Minnesota
Min. & Mfg. Co., 7 F. Supp. 2d 1030, 1032 (D. Neb. 1997) (noting that “[c]ircumventing the
discovery process is not to be taken lightly; in fact, such actions have resulted in serious sanctions in
other circumstances.”) Having failed to show that defendants’ answers to the request for production
are somehow deficient, this Court declines to grant plaintiff’s motion for an in camera review of
documents.

Accordingly, it is

ORDERED that Plaintiff’s Motion for an In Camera Review of Documents (Doc. #53), is
denied.

/s/ Sarah W. Hays
SARAH W. HAYS
UNTIED STATES MAGISTRATE JUDGE

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