Vera v. Rodriguez et al
MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen granting in part and denying in part 73 Plaintiff's Rule 37 Motion. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ESTHER VERA, as personal representative of
MANUEL FLORES, deceased,
CIV 16-0491 SCY/KBM
SAMUEL RODRIGUEZ in his individual capacity,
BOARD OF COUNTY COMMISSIONERS
OF BERNALILLO COUNTY, and DAN HOUSTON,
in his individual and official capacities as
BERNALILLO COUNTY SHERIFF,
MEMORANDUM OPINION AND ORDER ON
PLAINTIFF’S RULE 37 MOTION
THIS MATTER comes before the Court on Plaintiff’s Rule 37 Motion
(Doc. 73), filed May 18, 2017. The Court has reviewed the motion, the
memoranda and exhibits submitted by the parties, and the relevant authorities.
For the reasons stated herein, the Court finds that the motion will be granted in
part and denied in part.
Federal Rule of Civil Procedure 37 governs sanctions for various
discovery abuses. See Fed. R. Civ. P. 37. For instance, the failure to disclose
information, to supplement a response, or to admit a fact can be sanctionable
offenses. See Fed. R. Civ. P. 37(c). If a party fails to provide proper initial
disclosures under Rule 26(a) 1 or fails to supplement his initial disclosures or
discovery responses under Rule 26(e), he “is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In
addition to or in lieu of disallowing the use of any previously-undisclosed
information, the court may, on a motion by the opposing party, award reasonable
fees and expenses, inform the jury of the party’s failure, or impose certain other
Directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims;
Prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
Striking pleadings in whole or in part;
Staying further proceedings until the order is obeyed;
Dismissing the action or proceeding in whole or in part;
Rendering a default judgment against the disobedient party; or
Fed. R. Civ. P. 37(c)(1)(C) & 37(b)(2)(A)(i)-(vi).
A. Request for Production No. 21
This request for production, seeks “any documentation of changes in the
requirements of the standard required curriculum for field service deputies
between January 1, 2017 and the present, including the number of hours
required.” Doc. 73, Ex. 1, at 16. Defendant Bernalillo County objected on the
A party must provide as initial disclosures: 1) the name and contact information for any person
likely to have discoverable information that the disclosing party may use to support its claims or
defenses; 2) copies of documents or tangible things that the disclosing party may use to support
its claims or defenses; 3) a computation of each category of damages and supporting documents;
and 4) any insurance agreements under which an insurance business may be liable to satisfy all
or part of a judgment in the action or to indemnify. Fed. R. Civ. P. 26(a).
ground that it did not understand the request and would respond if and when
Plaintiff clarified the request. Doc. 73, Ex. 1, at 16. Following the filing of the
instant motion, on June 15, 2017, Defendant Bernalillo County provided a
supplemental production of documents to Plaintiff. Doc. 100 at 1. According to
Plaintiff, this supplementation rendered moot her motion with respect to Request
for Production No. 21. Id. As such, the Court denies as moot Plaintiff’s motion
with respect to Request for Production No. 21.
B. Interrogatory No. 18
In this interrogatory, Plaintiff asks Defendant Bernalillo County to “state all
instances in which the Watch III Relief Squad, including Sgt. Randall Herring or
Deputy Samuel Rodriguez, attended in-service training in July and August 2017.”
Doc. 73, Ex. 1, at 2. Defendant Bernalillo County invoked Rule 33(d), which
permits a party to respond to an interrogatory “by specifying records that must be
reviewed.” See Doc. 73, Ex. 1, at 2; Fed. R. Civ. P. 33(b). It produced a collection
of approximately 17 documents described as “R. Herring – BCSO Training
Certificates” as well as a “Privilege Log for Samuel Rodriguez’s BCSO Training
Certificates.” Doc. 73, Ex. 1. Defendant Bernalillo County listed fifty-one
documents in that privilege log; however, it asserted privileges only as to two of
those documents. See id.
In her reply brief, Plaintiff concedes that her motion is moot as to relief
sought regarding the privilege log. Doc. 100 at 2. She maintains, however, that
Defendant Bernalillo County’s substantive answer to this interrogatory remains
deficient. Id. Plaintiff argues that because Defendant Bernalillo County opted to
respond to Interrogatory No. 18 under Rule 33(d), by producing documents, it
must “precisely identify which document(s) correspond to the in-service training
in July and August 2014.” 2 Doc. 100 at 2. It appears that Plaintiff takes issue with
the over-inclusive nature of Defendant Bernalillo County’s response to
Interrogatory No. 18, as she contends that the produced documents do not fall
within the narrow timeframe specified in the interrogatory. Defendant Bernalillo
County, in contrast, maintains that all of the produced documents are responsive
to Interrogatory No. 18. Doc. 80 at 2.
In effect, Plaintiff suggests that by producing unresponsive documents
Defendant Bernalillo County has provided an evasive discovery response to
Interrogatory No. 18. Under Rule 37(a)(4), an evasive answer is treated as a
failure to respond. See Fed. R. Civ. P. 37(a)(4). Based upon the Court’s review
of the documents identified in the privilege log, it appears that many of the
documents produced by Defendant Bernalillo County in response to Interrogatory
No. 18 do not correspond to the timeframe specified in Interrogatory No. 18.
Indeed, the Court can identify only one document, Document 33, which bears a
date that falls in July or August of 2014.
As such, the Court orders Defendant Bernalillo County to supplement its
answer to Interrogatory 18 and to provide only those documents which identify inservice training attended by members of the Watch III Relief Squad in July or
August of 2014. If there are no documents responsive to this interrogatory,
Plaintiff explains in her reply brief that, as originally submitted to Defendant Bernalillo County,
the date range requested in Interrogatory No. 18 was July and August 2014. Doc. 100 n.1 She
notes that Defendant’s response contains a typographical error, listing the year as “2017,” rather
than “2014.” Id.
given its specific temporal parameters, Defendant Bernalillo County should so
state in its supplemental response.
C. Request for Production Nos. 9-15
In response to Plaintiff’s Requests for Production Nos. 9 through 15,
Defendant Bernalillo County represented that it had no responsive documents in
its possession. Plaintiff argues that because Defendant Bernalillo County has
denied having responsive documents, it cannot “reserv[e] the right to use
undisclosed documents responsive to those requests at a later date.” Doc. 100 at
3-4. Defendant Bernalillo County maintains that any request by Plaintiff to
exclude evidence responsive to these requests for production is premature. The
Court agrees. Plaintiff has not alleged that Defendant Bernalillo County relied
upon any specific information responsive Request for Production Nos. 9 through
15, which was not produced to Plaintiff. The Court will deny Plaintiff’s motion as
to any relief requested concerning Requests for Production Nos. 9 through 15.
D. Interrogatory No. 6
In this contention interrogatory, Plaintiff asks Defendant Bernalillo County
to “state the principal and material facts on which [it] rel[ies] to support each of
the affirmative defenses pleaded in [its] Answer to Plaintiff’s Complaint.” Doc. 73,
Ex. 3. Defendant Bernalillo County provided a response as to each of its eleven
affirmative defenses. Id. Plaintiff now contends that Defendant Bernalillo County
is precluded from relying upon facts or records supporting these affirmative
defenses which was not timely disclosed in response to Interrogatory No. 6,
unless it meets its burden of showing substantial justification or harmless error.
Doc. 100 at 5. For instance, Plaintiff insists that the May 3, 2017 Affidavit of
Defendant Samuel Rodriguez, which was attached in support of Defendant’s
Motion for Partial Summary Judgment No. II: Dismissal of Plaintiff’s State Law
Claims Against Defendant Rodriguez, (Doc. 68, Ex. P), was undisclosed
information that was responsive to Interrogatory No. 6. The subject affidavit sets
forth Defendant Rodriguez’ justification for using deadly force in the underlying
As a sanction for failing to disclose this affidavit, Plaintiff suggests that the
Court “fashion a remedy for the failure to timely supplement Defendant’s Answer
to Interrogatory No. 6 in conjunction with the remedy sought in Plaintiff’s Motion
to Prohibit Piecemeal Motion Practice (Doc. 82).” Doc. 100 at 7. This suggested
approach is not practical here, where the referenced motion is pending before
the presiding judge, while Plaintiff’s Rule 37 Motion is addressed herein by the
pretrial judge. In any event, the Court is unpersuaded that any sanction under
Rule 37 is appropriate with respect to the Affidavit of Defendant Rodriguez.
Plaintiff describes the affidavit as “a classic ‘sham affidavit’ seeking to
sanitize or edit the witness’ prior sworn testimony in a matter that leaves out
important contextual details.” Doc. 100 at 6. Yet she fails to identify any critical
details omitted from the affidavit or any examples of sanitization of deposition
testimony. Simply put, she offers no explanation as to how Defendant Rodriguez’
affidavit even differs from his deposition testimony.
Defendant Bernalillo County explains that in addition to statements
derived from deposition testimony, some statements in the affidavit are direct
quotes from Defendant Rodriguez’ original interview with investigators, upon
which Plaintiff’s counsel relied extensively during his deposition. Ultimately, it
insists that all of the statements in the affidavit contain information produced to
Plaintiff during discovery, albeit in a different form. Doc. 80 at 6-8.
The Court agrees with Defendant Bernalillo County that the reliance upon
the affidavit of a deposed party derived from facts and statements produced to
the opposing party during discovery does not necessarily violate Rule 37.
Further, even if reliance on Defendant Rodriguez’ affidavit could be characterized
as a violation of Rule 37, Plaintiff has failed to demonstrate any prejudice.
Notably, the source of the affidavit was not an undisclosed witness who Plaintiff
had no chance to depose. Rather, the affiant was a named defendant, who
Plaintiff deposed on March 7, 2017, and was subject to discovery requests.
Under these circumstances, the Court will deny Plaintiff’s motion as to the
Affidavit of Defendant Rodriguez.
Plaintiff also makes a cursory argument in her reply brief that Defendant
Bernalillo County failed to timely disclose the Affidavit of Dennis O’Brien and the
animations attached as Exhibits O-1 and O-2 to Defendants’ Motion for Partial
Summary Judgment No. II (Doc. 71) as supplements to its response to
Interrogatory No. 6. Plaintiff devotes little discussion to her request for exclusion
under Rule 37(c), noting that this issue is more fully addressed in her Motion to
Exclude Expert Opinion Evidence (Doc. 79). In the latter motion, the untimeliness
argument is but one argument, among many, that Plaintiff makes for exclusion of
the O’Brien affidavit and animations. See Docs. 79 & 99. Moreover, the
admissibility of Dennis O’Brien’s testimony and animations is also addressed by
Defendants in their Daubert Motion to Affirmatively Admit Animations and
Related Testimony by Dennis O’Brien (Doc. 70).
Therefore, the Court declines to address this request for Rule 37
sanctions in the context of the instant motion. Instead, the issue will be reserved
for the presiding judge’s determination in the context of the referenced dispositive
IT IS HEREBY ORDERED AS FOLLOWS:
1. Plaintiff’s Rule 37 Motion (Doc. 73) is granted in part to the extent that
Defendant Bernalillo County is ordered to supplement its response to
Interrogatory 18 and to provide only those documents which identify inservice training attended by members of the Watch III Relief Squad in July
or August of 2014.
2. Plaintiff’s Rule 37 Motion is otherwise denied.
UNITED STATES CHIEF MAGISTRATE JUDGE
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