Roberts v. City of Omaha et al

Filing 122

ORDER granting 105 Motion to Compel. Ordered by Magistrate Judge Thomas D. Thalken. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID ROBERTS,
Plaintiff,

8:11CV129

vs.
ORDER
CITY OF OMAHA, JOSH MARTINEC,
PHILLIP RICKER, ERICH JONES, and
JUSTIN RADERS,
Defendants.
This matter is before the court on the plaintiff’s, David Roberts (Roberts), Motion to
Compel Discovery (Filing No. 105). Roberts filed a brief (Filing No. 106) in support of the
motion. The defendant, the City of Omaha, filed a brief (Filing No. 114) in opposition.
Roberts filed a brief (Filing No. 118) in reply.

FACTUAL BACKGROUND
This is an action for Fourth Amendment excessive force violations under 42 U.S.C. §
1983. See Filing No. 1 - Complaint. The following facts are those determined by the United
States Court of Appeals for the Eighth Circuit and are adopted for purposes of this motion:
Roberts suffers from a diagnosed mental disability, paranoid
schizophrenia. On January 11, 2010, Roberts lived in Omaha,
Nebraska, with his parents and siblings. At approximately 5:13
a.m., Roberts’s mother, Wanda Roberts (Mrs. Roberts), called
911 and reported that “Roberts was having a psychotic episode
and had” attacked a member of the family with a knife or
screwdriver and then retreated to the basement. The 911
dispatcher alerted Officers [Josh] Martinec and [Phillip] Ricker
that Roberts was schizophrenic, had attempted to assault a
sibling, and potentially had a knife or screwdriver with him in
the basement. Roberts admits his mother made this call, but
denies the alleged attack occurred.
See Roberts v. City of Omaha, 723 F.3d 966, 974 (8th Cir. 2013). While the officers and
Roberts dispute what occurred after the officers responded to the 911 call, Officer Martinec
eventually pulled his weapon and fired six rounds hitting Roberts in multiple places. See
Filing No. 1 - Complaint; Filing No. 106 - Brief.

PROCEDURAL HISTORY
On April 7, 2011, Roberts filed a complaint against the City of Omaha and Officers
Martinec, Ricker, Jones, and Raders in their individual and official capacities. See Filing
No. 1 - Complaint. Roberts alleged violations of the Americans with Disabilities Act of 1990
(ADA), the Rehabilitation Act of 1973 (Rehabilitation Act), the Fourth and Fourteenth
Amendments, and state law. Id. On appeal to the Eighth Circuit following a ruling on the
defendants’ summary judgment motion, the Eighth Circuit dismissed Roberts’ ADA and
Rehabilitation Act claims and determined Officers Ricker, Jones, and Raders were entitled
to qualified immunity. See Roberts, 723 F.3d at 976. Following the appeal, the court
entered a progression order. See Filing No. 102 - Order. The parties had until July 31,
2014, to conduct discovery. See id. Trial is set for September 22, 2014. Id.
On July 3, 2014, Roberts filed the instant motion to compel. See Filing No. 105 Motion. Roberts seeks to compel the defendants to respond to Request for Production of
Documents No. 2 and to produce all information related to Officer Martinec’s prior safety
rule and policy and procedure violations while employed as an Omaha police officer. See
Filing No. 106 - Brief.1 Roberts argues Officer Martinec’s personnel file is relevant under
the broad scope of discovery because it is relevant to punitive damages and could serve as
impeachment evidence.

Id.

Roberts contends personnel files have been determined

discoverable in other cases, specifically for use as impeachment material.

Id. (citing

Wescott v. Crinklaw, 68 F.3d 1073 (8th Cir. 1995) (holding reversible error occurred in
disallowing impeachment evidence regarding previous incidents of officer’s use of
excessive force and gunfire)).
The city contends the motion is untimely because Roberts made his discovery
request in June 2012. See Filing No. 114 - Response. The city argues with the pretrial
order deadline looming and trial around the corner, the motion should be denied.

Id.

Additionally, the city argues its supplemental response provided information on Officer
Martinec’s use of a firearm and thus its obligation is satisfied. Id.2 The city represents that,
without conceding whether any past discipline or complaints are relevant to punitive
damages, to avoid the argument now, the city provided discovery on any prior incidents
involving firearms. Id. However, the city asserts any other material, such as proper pursuit
1

Roberts did not attach the discovery request or include the request in an index of evidence.
In the city’s brief, the city references a Supplement Response as “ex. 2, opposing the motion”
and exhibits submitted; however, there are no exhibits included with the brief or filed separately.
2

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procedures, improper reporting, and unprofessional conduct, is not sufficiently related to the
issues in this case. Id. The city argues only “prior incidents of the sort that harmed the
plaintiff” are relevant. Id. The city contends Roberts oversells the need for impeachment
material. Id. The city’s attorney represents he will not open the door for impeachment. Id.
Roberts replies his motion is timely as it was filed before the July 31, 2014, deadline.
See Filing No. 118 - Reply. Roberts argues while the discovery request for the contested
information was made in 2012, his case was primarily focused on other theories of liability,
which are now dismissed, thus Roberts did not pursue the discovery. Id. Due to the shift in
focus following dismissal of several claims, Roberts argues it is imperative to seek and
obtain the requested discovery. Id. Roberts asserts the city’s supplemental response is
insufficient and he is entitled to evidence beyond that disclosed in the response.

Id.

Roberts argues discovery is not limited to “prior incidents of the sort that harmed the
plaintiff” or prior incidents involving firearms. Id. Roberts states while his counsel respects
the city’s counsel’s representation the door to impeachment will not be opened, Roberts
argues such an assurance is meaningless and should be construed as an admission the
evidence is discoverable and potentially admissible for impeachment purposes if the door is
opened. Id.

ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “Broad discovery is an important
tool for the litigant, and so ‘[r]elevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.’”
WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir.
2011) (alteration in original) (quoting Fed. R. Civ. P. 26(b)(1)).

Accordingly, relevant

information includes “any matter that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). Mere speculation that information might be useful will
not suffice; litigants seeking to compel discovery must describe with a reasonable degree of
specificity the information they hope to obtain and its importance to their case.

See

Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972). Once the requesting party
meets the threshold relevance burden, generally “[a]ll discovery requests are a burden on
the party who must respond thereto. Unless the task of producing or answering is unusual,
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undue or extraordinary, the general rule requires the entity answering or producing the
documents to bear that burden.” Continental Ill. Nat’l Bank & Trust Co. of Chicago v.
Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation omitted).
As an initial matter, Roberts’ motion is timely. Roberts filed the motion on July 3,
2014, which was within the July 31, 2014, discovery deadline. Moving to the substance of
the motion, the city represents it provided discovery relevant to punitive damages. See
Filing No. 114 - Response p. 3.

Roberts does not dispute this in his reply, thus, the

remaining dispute appears related to the discovery of impeachment evidence. Assuming,
based on the parties’ representations, the Request for Production of Documents No. 2 is
limited to a request of Officer Martinec’s safety rule and policy and procedure violations,
Roberts has met his threshold burden of showing the information is relevant as
impeachment evidence. The defendants have not shown they would suffer prejudice or an
undue burden by producing the discovery. While the court respects defendants’ counsel
representation the door to impeachment will not be opened, that is not the standard to
determine whether a party may obtain discovery. The whole of Officer Martinec’s personnel
file is not open for discovery, only those portions that relate to safety rule and policy and
procedure violations. Accordingly,

IT IS ORDERED:
The plaintiff’s Motion to Compel Discovery (Filing No. 105) is granted.
ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of
the Court within fourteen (14) days after being served with a copy of this Order. Failure to
timely object may constitute a waiver of any objection. The brief in support of any objection
shall be filed at the time of filing such objection. Failure to file a brief in support of any
objection may be deemed an abandonment of the objection.

Dated this 20th day of August, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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