Dalton v. Town of Silver City et al

Filing 198

ORDER GRANTING AND DENYING IN PART 56 MOTION to Compel by Magistrate Judge Gregory B. Wormuth. (ceo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KARRI DALTON, as personal
representative of THE ESTATE OF
NIKKI BASCOM, deceased, and next
of friend to M.B., a minor child, and
A.C., a minor child,
Plaintiff,
v.

Civ. No. 17-1143 WJ/GBW

TOWN OF SILVER CITY, et al.,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL
THIS MATTER comes before the Court on Plaintiff’s Motion to Compel (doc. 56)
pursuant to the parties’ agreement for the Court to rule on the Motion de novo instead of
resolving Plaintiff’s objections (doc. 132) to its earlier order (doc. 123) on the Motion, see
doc. 190 at 2. Having reviewed the Motion and its attendant briefing (docs. 65, 69),
having conducted a hearing on the Motion (doc. 197), and being otherwise fully advised
in the premises, the Court GRANTS the Motion IN PART and DENIES it IN PART.

I.

BACKGROUND
This case arises from the killing of Nikki Bascom by Marcello Contreras—her

former boyfriend and an officer in the Silver City Police Department (“SCPD”)—and

the alleged failure of the Silver City Defendants1 and other law enforcement officers and
agencies to protect Ms. Bascom from Mr. Contreras. See generally doc. 1-2. The claims
against the Silver City Defendants include equal protection claims for discriminatory
police protection. Id. at ¶¶ 236–241.
On March 7, 2019, the Court denied the Silver City Defendants summary
judgment on Plaintiff’s equal protection claims. Doc. 110 at 24. With respect to
Plaintiff’s claims against Defendants Reynolds and Villalobos, it found that “Ms.
Bascom received disparate treatment compared to other domestic violence victims” and
that a genuine issue of material fact existed as to whether these two Defendants had
“acted at least in part ‘because of’ not merely ‘in spite of’ the differential treatment of
Ms. Bascom.” Id. at 14 (emphasis omitted) (quoting SECSYS, LLC v. Vigil, 666 F.3d 678,
685 (10th Cir. 2012)). As for Plaintiff’s claim of municipal liability against Defendant
Town of Silver City under Monell v. Department of Social Services, 436 U.S. 658 (1978), the
Court found that there was a genuine issue of material fact as to whether “the Town of
Silver City had a policy of providing less protection to victims of domestic violence
whose assailants were officers of SCPD than to other domestic violence victims” and
that such a policy would be “discriminatory on [its] face” if it existed. Id. at 13–14. The
Tenth Circuit affirmed the Court’s decision on interlocutory appeal, doc. 182-1 at 2. The

1

The Silver City Defendants are Defendants Town of Silver City, Ed Reynolds, and Ricky Villalobos.

2

Supreme Court has not yet ruled on the Silver City Defendants’ petition for a writ of
certiorari. See doc. 195.
Before the Court stayed discovery for the pendency of its adjudication of other
Defendants’ motion for summary judgment on their qualified immunity defense and
the Tenth Circuit’s adjudication of the Silver City Defendants’ interlocutory appeal, see
docs. 39, 124, Plaintiff served Defendant Town of Silver City with her first federal2 set of
interrogatories and requests for production, see docs. 24. She requests Defendant to
produce the following documents: (i) “a complete roster of all SCPD officers
(identifying each officer by full name, rank, and home address) from January 1, 2008[,]
to present,” doc. 56-3 at 2 (Req. for Produc. No. 1); (ii) dispatch records created on or
after January 1, 2008, for all calls for service in which the address of the call matches an
address in the roster, id. at 3 (Req. for Produc. No. 2); (iii) every incident report that is
associated with the above dispatch records or in which the address listed in any person
field matches that of SCPD, id. at 4–5 (Reqs. for Produc. Nos. 3 & 4); (iv) a computer
aided dispatch (“CAD”) report for any dispatch records in which the original call type
classification has been changed from requesting public service to any other call type
since January 1, 2008, id. at 9 (Req. for Produc. No. 17); (v) every internal affairs record
generated or maintained by SPCD on or after January 1, 2008, id. at 6 (Req. for Produc.

Plaintiff also served Defendant Town of Silver City with requests for production in state court prior to
removal. See doc. 56-1.
2

3

No. 5); (vi) every document created on or after January 1, 2008, pursuant to Internal
Affairs Policies III(B)(4), (B)(7), (F)(5), (H)(3)(e), and (I)(vii), id. at 7 (Reqs. for Produc.
Nos. 7–11); and (vii) all records of any case investigated by SCPD pursuant to any
formal or informal agreement between SCPD and the Grant County Sherriff’s Office, id.
at 10 (Req. for Produc. No. 18).
Plaintiff also requests Defendant Town of Silver City to provide her with the
following information: (i) the name and rank of every SCPD officer who has been
demoted, placed on administrative leave, suspended, or terminated for disciplinary
reasons since January 1, 2008, and the reason for demotion, suspension, termination, or
placement on administrative leave, doc. 56-4 at 2–4 (Interrogs. Nos. 1–4); (ii) a
description of every instance in which a person has contacted Defendant Reynolds or
Defendant Villalobos to report any misconduct by any SCPD officer, id. at 6 (Interrog.
No. 8); and (iii) the person who conducted each electronic search for materials
responsive to each of the first federal requests for production, the database searched,
and the search parameters used to do so, id. at 5 (Interrog. No. 7).
Defendant Town of Silver City objects to these discovery requests as irrelevant,
overbroad, and unduly burdensome. See generally docs. 56-3, 56-4. After the parties’
attempts to meet and confer did not resolve their discovery dispute, see doc. 56-5,
Plaintiff moved the Court to compel the disputed discovery on July 9, 2018, doc. 56.

4

Defendant responded on August 3, 2018. Doc. 65. Briefing was complete on August 15,
2018, doc. 70, with the filing of Plaintiff’s reply, doc. 69.
On March 29, 2019, the Court granted and denied Plaintiff’s motion in part, and
stated that it would “explain in writing the extent to which the Motion is alternately
granted or denied, and the reasons therefor, when the stay occasioned by the
interlocutory appeal is lifted.” Doc. 123 at 1. Plaintiff objected to this order on April 12,
2019. Doc. 132. The Silver City Defendants responded to her objections on April 25,
2019. Doc. 135. Briefing was complete on Plaintiff’s objections on May 9, 2019 with the
filing of Plaintiff’s reply. Doc. 140. On July 28, 2021, the parties agreed for the Court to
re-adjudicate the Motion de novo rather than resolve Plaintiff’s objections. Doc. 190 at 2.

II.

LEGAL STANDARD
The Federal Rules of Civil Procedure allow parties to “obtain discovery

regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). They also afford the
Court “wide discretion in balancing the needs and rights of [the parties].” OsteoStrong
Franchising, LLC v. Richter, Civ. No. 18-1184 KWR/JFR, 2020 WL 7872786, at *4 (D.N.M.
Jan. 30, 2020) (unpublished) (quoting Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520
(10th Cir. 1995)).
Relevancy is “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on[,] any party’s claim or
5

defense.” Keller v. Arrieta, Civ. No. 20-259 KG/SCY, 2021 WL 3169229, at *2 (D.N.M.
July 27, 2021) (unpublished) (quoting Kennicott v. Sandia Corp., 327 F.R.D. 454, 469
(D.N.M. 2018)); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). This
standard “reflect[s] the courts’ and Congress’ recognition that ‘mutual knowledge of
all the relevant facts gathered by both parties is essential to proper litigation.’” Tolbert
v. Gallup Indian Med. Ctr., No. CIV 19-0830 JB/LF, 2021 WL 3641945, at *14 (D.N.M.
Aug. 17, 2021) (unpublished) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). The
party seeking discovery bears burden of demonstrating its relevance. Id. at *20.
Proportionality imposes a limit on the discoverability of relevant information. It
depends on a multitude of factors: “the importance 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). It reflects the notion that “the Court is not required to permit the
parties to engage in fishing expeditions in the hope of supporting their claims.” MeloFernandez v. Bearden, CV 20-0081 SCY/JHR, 2020 WL 7353880, at *2 (D.N.M. Dec. 15,
2020) (unpublished) (citing Landry v. Swire Oilfield Servs., LLC, 323 F.R.D. 360, 375
(D.N.M. 2018)).

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III.

ANALYSIS
Responses—in full or in part—are warranted to all the disputed discovery

requests except for Request for Production No. 1 and Interrogatory No. 7. Before
detailing the required responses, though, some elaboration is warranted on (A) the
scope of information and documentation relevant to Plaintiff’s claim of discriminatory
police protection; and (B) the extent to which producing this discovery poses an undue
burden on Defendant Town of Silver City—since Defendant objects to all the requested
discovery on the grounds that it is irrelevant, overbroad, and unduly burdensome. See
generally docs. 56-3, 56-4. In its elaboration, the Court will also lay out the limiting
principle and temporal scope that it will apply to Plaintiff’s discovery requests to cure
them of their overbreadth.

A. MUCH OF PLAINTIFF’S REQUESTED DISCOVERY IS OVERBROAD IN
SUBSTANTIVE AND TEMPORAL SCOPE
Many of Plaintiff’s discovery requests are overbroad—most in substance, others
in temporal scope, and a few in both. A discovery request is overbroad where its
sweep includes information or documentation that does not bear, or reasonably lead to
other matter bearing, on a party’s claim or defense. See Keller, 2021 WL 3169229, at *2–
3; Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649 (10th Cir. 2008). When confronted
with an overbroad discovery request, the Court has the discretion to deny it or narrow
it down and tailor it to exclude irrelevant information. See Zuniga v. TrueAccord, No.

7

2:18-cv-00683-KG-KRS, 2019 WL 6528759, at *3 (D.N.M. Dec. 4, 2019) (unpublished)
(citing Regan-Touhy, 526 F.3d at 649–50, and Punt v. Kelly Servs., 862 F.3d 1040, 1046–47
(10th Cir. 2017)).
Substantively, Plaintiff propounded her discovery requests to identify other
instances in which SCPD officers treated the victims of domestic violence and other
crimes by SCPD officers differently than other crime victims. See doc. 56 at 6, 9, 11–14;
doc. 69 at 1, 4. Such instances bear directly on an element of Plaintiff’s Monell claim
against Defendant Town of Silver City: whether SCPD has a policy or custom of
providing less protection to victims of crimes committed by SCPD officers. See Watson
v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988). Any instances in which
Defendants Reynolds and Villalobos were personally involved also bear directly on an
element of Plaintiff’s individual claims against them: whether these Defendants acted
with discriminatory intent when they failed to protect Ms. Bascom from Mr. Contreras.
See Vigil, 666 F.3d at 686 (explaining that a discriminatory pattern is evidence of
discriminatory intent).
To discover these instances, though, Plaintiff requests information, records, and
other documentation which sweep across all potential misconduct engaged in by SCPD
officers. See, e.g., doc. 56-3 at 2; doc. 56-4 at 2–4.3 Given Plaintiff’s equal protection

Indeed, in the effort to collect this information, some of Plaintiff’s requests are not even limited to
misconduct. See doc. 56-3 at 2 (Req. for. Produc. No. 1).
3

8

theory, the relevant misconduct is limited to that which would be outside of the
performance of official duties, be potentially criminal in nature, and involve a victim.
Beyond that, information and documentation about SCPD officers would not
reasonably lead to the discovery of other instances of discriminatory SCPD protection
that are relevant to Plaintiff’s equal protection claims. Therefore, the Court will limit
the scope of Plaintiff’s discovery requests to information and documentation relating to
conduct by a SCPD officer, not committed in performance of official duties, that could
constitute, or could lead to an investigation of, a crime against a person.4
Temporally, a few of Plaintiff’s discovery requests, see doc. 56-4 at 6 (Interrog.
No. 8); doc. 56-3 at 10 (Req. for Produc. No. 18), are overbroad because they lack any
temporal limitation, see Flowers v. Matheson Tri-Gas, Inc., Civ. No. 19-148 RB/SCY, 2020
WL 1889108, at *2 (D.N.M. Apr. 16, 2020) (unpublished); Olivo v. Crawford Chevrolet,
Inc., Civil No. 10-782 BB/LFG, 2011 WL 12687969, at *5 (D.N.M. Apr. 20, 2011)
(unpublished). Several district courts have approved temporal scopes in excess of ten
years for discovery requests that seek to identify other instances of police misconduct
to support a Monell claim. See Benitez v. Lopez, 372 F. Supp. 3d 84, 89 (E.D.N.Y. 2018)
(rejecting a ten-year limitation on requests to produce complaints of police

4

Per the parties’ and the Court’s discussion at the hearing, this limiting principle is to be construed
liberally and inclusively. Where it is a close call whether a SCPD officer’s conduct falls within the scope
of this principle, discovery relating to that conduct should be produced or an in camera review by the
Court requested. Doc. 197 at 4.

9

misconduct); Nunez v. City of New York, No. 11 Civ. 5845(LTS)(JCF), 2013 WL 2149869,
at *4 (S.D.N.Y. May 17, 2013) (unpublished) (compelling the production of more than
thirteen years’ worth of police files on officers’ use of force). Since Plaintiff’s discovery
was propounded in 2018, see doc. 24, and most of it requests information and
documentation from January 1, 2008, onwards, see, e.g., doc. 56-3 at 2–3, 5; doc. 56-4 at 2–
4, the Court therefore will limit the temporal scope of all discovery requests to the
period of January 1, 2008, to December 31, 2018.

B. PLAINTIFF’S PROPOUNDED DISCOVERY
Defendant Town of Silver City has not shown that any of Plaintiff’s discovery
requests are unduly burdensome. Unless discovery is overbroad on its face,
[t]he party resisting [it] as unduly burdensome bears [the] burden of showing
facts demonstrating that the time or expense involved in responding to requested
discovery is unduly burdensome; this includes the obligation to provide
sufficient detail and explanation about the nature of the burden in terms of time,
money, and procedure required to produce the requested documents.
Dentsply Int’l, Inc. v. Lewis & Roca, LLP, No. 1:12-CV-00104-MCA/ACT, 2013 WL
12246642, at *3 (D.N.M. May 21, 2013) (unpublished) (citing Gen. Elec. Cap. Corp. v. Lear
Corp., 215 F.R.D. 637, 641 (D. Kan. 2003)). Generally, the resisting party discharges this
burden “by submitting affidavits or offering evidence revealing the nature of the
burden.” Id. at *4 (citing DIRECTV, Inc. v, Puccinelli, 224 F.R.D. 667, 688–89 (D. Kan.
2004)). Defendant has provided no evidence of the specific financial and temporal costs

10

that responding to Plaintiff’s discovery requests entails. See generally doc. 65. Therefore,
it has not borne its burden of showing that these costs are undue.

C. RULINGS ON PARTICULAR DISCOVERY REQUESTS
Turning to the discovery requests themselves, Defendant Town of Silver City
must respond in full to Requests for Production Nos. 2–3, and in part to Interrogatories
Nos. 1–4, 8 and Requests for Production Nos. 4–5, 7–11, and 17–18. No response is
warranted to Interrogatory No. 7 or Request for Production No. 1. Instead, the parties
are directed to meet and confer about the search methodologies that Defendant Town
of Silver City will use to identify and produce responsive information and
documentation.

1. Interrogatories Nos. 1-4
Defendant Town of Silver City must respond in part to Interrogatories Nos. 1-4
by producing the identity of each SCPD officer who was demoted, suspended, placed
on administrative leave, or terminated from January 1, 2008, to December 31, 2018, for
conduct, not committed in performance of official duties, that could constitute, or could
lead to an investigation of, a crime against a person; and (ii) the reasons for each
identified officer’s demotion, suspension, termination, or placement on administrative
leave. Plaintiff requests this information for a broader set of SCPD officers: every officer
that has been demoted, suspended, placed on administrative leave, or terminated for

11

disciplinary reasons since January 1, 2008. Doc. 56-4 at 2–4. Per the Court’s elaboration
above, this request is overbroad since its sweep includes the identities of officers—e.g.,
those disciplined for insubordination—that do not reasonably contribute to the
discovery of other instances of discriminatory police protection.

2. Interrogatory No. 7
No response to Interrogatory No. 7 is required since it requests discovery-ondiscovery that is inappropriate at this time. This interrogatory asks Defendant to
identify the following for each electronic search conducted for materials responsive to
Plaintiff’s first federal requests for production: “the person conducting the search, the
database or system searched, [and] the search parameters used, including date ranges,
fields, and exact search terms.” Id. at 5.
“’[M]eta-discovery’ or discovery about discovery ‘should be closely scrutinized
in light of the danger of extending the already costly and time-consuming discovery
process ad infinitum.’” In re Liptor (Atorvastatin Calcium) Mktg., Sales Pracs. & Prods. Liab.
Litig., No. 2:14-mn-02502-RMG, 2014 WL 12621613, at *1 (D.S.C. Nov. 13, 2014)
(unpublished) (quoting Freedman v. Weatherford Int’l Ltd., No. 12 Civ. 2121(LAK)(JCF),
2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014) (unpublished)). Courts like this one
agree, though, that discovery on the process that a party used to respond to discovery
request is appropriate where there is reasonable doubt about the sufficiency of a party’s
response. See F.F.T., LLC v. Sexton, No. 1:19-cv-03027-RLY-MJD, 2020 WL 3258623, at *3
12

(S.D. Ind. June 15, 2020) (unpublished); Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 WL
6055402, at *4 (S.D. Ohio Nov. 15, 2013) (unpublished); S2 Automation LLC v. Micron
Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454, at *32 (D.N.M. Aug. 9, 2012)
(unpublished); see generally Hon. Craig B. Shaffer, Deconstructing “Discovery about
Discovery,” 19 Sedona Conf. J. 215 (2018) (gathering cases). A few courts have also
authorized this discovery where progress in discovery has become “glacial” due to a
breakdown in the collaborative process. See, e.g., Crocs, Inc. v. Effervescent, Inc., Civil
Action No. 06-cv-00605-PAB-KMT, 2017 WL 1325344, at *8–9 (D. Colo. Jan. 3, 2017)
(unpublished), objections overruled by 2017 WL 1325171 (D. Colo. Feb. 24, 2017)
(unpublished); Ruiz-Bueno, 2013 WL 6055402, at *4.
Discovery on the search methodologies that Defendant Town of Silver City used
to respond to each one of Plaintiff’s first federal requests for production is inappropriate
at this time. Plaintiff has not shown that there is reason to doubt the sufficiency of
Defendant’s responses to these requests. Defendant answered less than a third of them
and objected to the rest. See generally doc. 56-3. Plaintiff has not disputed the sufficiency
of these answers. See generally doc. 56.
Rather, Plaintiff argues that reasonable doubt about Defendant Town of Silver
City’s compliance with all discovery exists because, while this case was in state court,
Defendant denied having records responsive to a request for production of documents
reflecting criminal allegations against SCPD officers since 2006, and Defendant
13

Reynolds subsequently testified that, since that date, two officers had been accused of
domestic violence and two officers had been the subject of criminal investigations. See
doc. 56 at 7 (citing doc 56-1 at 2–3, and doc. 56-2 at 73:23–75:20). The tension between
Defendants Town of Silver City and Reynolds’ sworn statements casts some doubt on
the former’s response to the state court request for production. This discovery
response, though, is separate and distinct from the responses to Plaintiff’s federal
requests for production that fall within the ambit of Interrogatory No. 7. It is not a
sufficient basis to doubt the sufficiency of Defendant Town of Silver City’s responses to
the federal requests for production before Defendant has even answered most of them.
To move discovery along, though, parties are directed to meet and confer about
the search methodologies that Defendant will use to identify and produce documents
responsive to the unanswered federal requests for production. At the start of discovery,
the cooperative planning mandated by the Rule 26(f) meet and confer process includes
jointly refining search terms and methodologies for electronically stored information
(“ESI”) and identifying the databases to be searched for this information. See HealthEdge
Software, Inc. v. Sharp Health Plan, No. 19-cv-11020-ADB, 2021 WL 1821358, at *3 (D.
Mass. May 6, 2021) (unpublished); Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL
4137847, at *8 (S.D.W. Va. July 8, 2015) (unpublished); Ruiz-Bueno, 2013 WL 6055402, at
*4. Since the parties recently met and conferred about the discovery remaining after the
lifting of the stay, see doc. 194, the Court finds it appropriate for them to supplement that
14

conference by cooperatively planning Defendant Town of Silver City’s ESI searches.
Furthermore, if a discovery dispute were to arise from the results of Defendant’s
searches, Defendant should disclose the terms and locations of its searches during any
meet and confer process about that dispute as part of its burden of demonstrating that
its searches were reasonable. See HealthEdge Software, 2021 WL 1821358, at *2; Burnett,
2015 WL 4137847, at *8; Ruiz-Bueno, 2013 WL 6055402, at *4

3. Interrogatory No. 8
Defendant Town of Silver City must respond in part to Interrogatory No. 8 by
producing a description of each instance between January 1, 2008, and December 31,
2018, in which a person contacted Defendant Reynolds or Defendant Villalobos to
report conduct by a SCPD officer, not committed in performance of official duties, that
could constitute, or could lead to an investigation of, a crime against a person. Plaintiff
requests this information for a broader set of instances: every instance in which any
person has ever contacted Defendant Reynolds or Defendant Villalobos to report any
misconduct by a SCPD officer. Doc. 56-4 at 6. As the Court elaborated above, this
request is overbroad since it lacks a temporal limitation, and its substantive sweep
includes misconduct—e.g., driving under the influence of alcohol—that does not
reasonably contribute to the discovery of other instances of discriminatory police
protection.

15

Defendant Town of Silver City notes that it “did not maintain any responsive
records for complaints other than those contained in written form.” Doc. 65 at 8. Rule
33(b)(1)(B), though, requires Defendant to “furnish the information available to [it].”
Fed. R. Civ. P. 33(b)(1)(B). This information is not limited to that which is maintained in
the ordinary course of business or otherwise known and immediately available.
Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 629 (N.D. Okla. 2009); Miller v. Doctor’s
Gen. Hosp., 76 F.R.D. 136, 140 (W.D. Okla. 1977). Rather, it extends to information that
Defendant may obtain with reasonable effort, including that held by agents,
representatives, current employees, and former employees. Nat’l Fire Ins. Co. of Hartford
v. Jose Trucking Corp., 264 F.R.D. 233, 238 (W.D.N.C. 2010); Essex Builders Grp., Inc. v.
Amerisure Ins. Co., 230 F.R.D. 682, 685 (M.D. Fla. 2005); Miller, 76 F.R.D. at 140.
However, information is not obtainable with reasonable effort if it requires
“undue labor and expense” to obtain. Lynn v. Monarch Recovery Mgmt., Inc., 285 F.R.D.
350, 357 (D. Md. 2012) (quoting 8B Charles Alan Wright et al., Federal Practice &
Procedure Civil §§ 2174, 2177 (3d ed. 2012)). Defendant “is not required to make an
extensive investigation,” Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 282
(N.D. Tex. 2017), or “do [Plaintiff’s] investigation for [her],” Olmert v. Nelson, 60 F.R.D.
369, 370 (D.D.C. 1973). If, after exerting a reasonable effort, Defendant “lacks necessary
information to make a full, fair and specific answer to [this] interrogatory, it should so

16

state under oath and should set forth in detail the efforts made to obtain the
information.” Miller, 76 F.R.D. at 140.

4. Requests for Production Nos. 1-3
Defendant Town of Silver City must respond in full to Requests for Production
Nos. 2–3 by producing (i) all dispatch records between January 1, 2008, and December
31, 2018, that document a call for service in which the address of the call matches that of
a SCPD officer; and (ii) all incident reports associated with these dispatch records.
Documents like these that contain information about SCPD officers’ responses to 911
calls from SCPD officers’ residences reasonably could lead to the discovery of other
instances of discriminatory police protection that are relevant to Plaintiff’s equal
protection claims against the Silver City Defendants.
No response to Request for Production No. 1 is warranted since a complete
response to Request for Production No. 2 renders Request for Production No. 1
duplicative. In Request for Production No. 1, Plaintiff requests “a complete roster of all
SCPD officers (identifying each officer by full name, rank, and home address) from
January 1, 2008[,] to present,” doc. 56-3 at 2, as a means to obtain records for calls to
dispatch from the addresses of SCPD officers, see doc. 56 at 11–12. During the motion
hearing, Defendant Town of Silver City agreed to have the relevant dispatch authority
identify all dispatch records for calls from the addresses of SCPD officers (which
Defendant will supply to the authority) and to relay those records to Plaintiff in its
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response to Request for Production No. 2. See doc. 197 at 5. Since the purpose behind
the request for the roster of SCPD officers may be realized without its production, the
roster need not be produced.

5. Request for Production No. 4
Defendant Town of Silver City must respond in part to Request for Production
No. 4 by producing incident reports between January 1, 2008, and December 31, 2018, in
which the address listed for any “person” field matches any of the following versions of
the address of SCPD: 1011 N Hudson; 1011 N. Hudson; and 1011 North Hudson, and
involves conduct by an SCPD officer not committed in performance of official duties,
that could constitute, or could lead to an investigation of, a crime against a person.5
Evidence in the record indicates that, on at least one occasion, SCPD officers have listed
the department’s address as the address for a police officer who committed a crime in
that crime’s police report. Doc. 56 at 12 n.2. Therefore, production of this category of
incident reports listing the department’s address as the address of an involved person
could lead to the discovery of other instances of discriminatory police protection that
are relevant to Plaintiff’s equal protection claims.

If Defendant does not wish to undertake the burden of screening the reports for this second element, it
may of course produce all reports with the SCPD address listed in the person field.
5

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6. Request for Production No. 5
Defendant Town of Silver City must respond in part to Request for Production
No. 5 by producing all internal affairs records generated or maintained by SCPD
between January 1, 2008, and December 31, 2018, arising from conduct by a SCPD
officer, not committed in performance of official duties, that could constitute, or could
lead to an investigation of, a crime against a person. Per the Court’s elaboration above,
Plaintiff’s request for the production of every internal affairs record during this period,
see doc. 56-3 at 6, is overbroad since its sweep includes internal affairs records—e.g.,
those arising from a SCPD officer’s insubordination—that do not reasonably contribute
to the discovery of other instances of discriminatory police protection.

7. Requests for Production Nos. 7-11
Defendant Town of Silver City must respond in part to Requests for Production
Nos. 7–11 by producing every document created between January 1, 2008, and
December 31, 2018, pursuant to Internal Affairs Policies III (B)(4), (B)(7), (F)(5), (H)(3)(e),
and (I)(vii) that relates to conduct by a SCPD officer, not committed in performance of
official duties, that could constitute, or could lead to an investigation of, a crime against
a person. Per the Court’s earlier elaboration, Plaintiff request for every document
created pursuant to these policies during this period, see doc. 56-3 at 7, is overbroad
since its sweep includes documents—e.g., those arising from a SCPD officer driving

19

under the influence of alcohol—that do not reasonably contribute to the discovery of
other instances of discriminatory police protection.

8. Request for Production No. 17
Defendant Town of Silver City must respond in part to Request for Production
No. 17 by producing a CAD report for any dispatch records created between January 1,
2008, and December 31, 2018, in which the original call type classification has been
changed from “Req Public Service” to any other call type, and involves conduct by an
SCPD officer not committed in performance of official duties, that could constitute, or
could lead to an investigation of, a crime against a person.6 The dispatch record from a
911 call by Ms. Bascom about Mr. Contreras was downgraded from a report of a
domestic disturbance to a welfare check. Doc. 56-6. Dispatch records with similar
downgrades in classification, therefore, could reasonably lead to the discovery of other
instances of discriminatory police protection.
Request for Production No. 17 is not duplicative to Request for Production No. 2,
which requests dispatch records for calls for service at the address of a SCPD officer.
Overlap is possible between instances of discriminatory police protection identified by
records for calls for service at the address of a SCPD officer and instances of
discriminatory police protection identified by downgrades in classification. But the

If Defendant does not wish to undertake the burden of screening the reports for this second element, it
may of course produce all reports with the classification change.
6

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overlap is not necessarily perfect. The latter could reasonably include calls from victims
of crimes by SCPD officers at locations other than SCPD officers’ addresses.

9. Request for Production No. 18
Defendant Town of Silver City must respond in part to Request for Production
No. 18 by producing records of any case investigated by SCPD, from January 1, 2008, to
December 31, 2018, pursuant to any agreement (formal or informal) between SCPD and
Grant County Sherriff’s Office (“GCSO”) arising from conduct by a SCPD officer, not
committed in performance of official duties, that could constitute, or could lead to an
investigation of, a crime against a person. Plaintiff requests all records of any case ever
investigated by SCPD under such an agreement. See doc. 56-3 at 10. As the Court
elaborated above, this request is overbroad since it lacks a temporal limitation, and its
substantive sweep includes investigations—e.g., those of a GCSO deputy or a SCPD
officer suspected of driving under the influence of alcohol—that do not reasonably
contribute to the discovery of other instances of discriminatory police protection.

IV.

CONCLUSION
For the reasons above, the Court GRANTS IN PART and DENIES IN PART

Plaintiff’s Motion to Compel (doc. 56). IT IS HEREBY ORDERED that, within thirty
(30) days of the entry of this order, Defendant Town of Silver City respond in full to

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Requests for Production Nos. 2–3, and in part to Interrogatories Nos. 1–4, 8 and
Requests for Production Nos. 4–5, 7–11, and 17–18. No response is warranted to
Interrogatory No. 7 or Request for Production No. 1. IT IS FURTHER ORDERED that,
within ten (10) days of the entry of this order, the parties meet and confer about the
search methodologies that Defendant Town of Silver City will use to identify and
produce responsive information and documentation.
The parties shall bear their own expenses and attorney’s fees since the
overbreadth of several of Plaintiff’s discovery requests makes Defendant Town of
Silver City’s opposition to her motion substantially justified. See Fed. R. Civ. P.
37(a)(5).
IT IS SO ORDERED.

_____________________________________

GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE

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