Cybernet, LLC et al v. David et al

Filing 86

ORDER granting 70 Motion to Compel and denying 74 Motion to Compel. Signed by US Magistrate Judge Robert B. Jones, Jr. on 2/9/2018. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:16-CV-16-RJ
CYBERNET, LLC and
ALADDIN REAL ESTATE, LLC,
Plaintiffs,
v.
JONATHAN DAVID, et al.,
Defendants.

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ORDER

This matter is before the court on two discovery-related motions: (1) Defendants James
McVicker and Travis Deaver's motion to compel [DE-70], to which Plaintiffs filed a response in
opposition [DE-78]; and (2) Plaintiffs' motion to compel [DE-74], to which Defendant Jonathan
David filed a response in opposition [DE-81]. The issues have been fully briefed, and the
motions are ripe for decision. For the reasons that follow, Defendants James McVicker and
Travis Deaver's motion to compel [DE-70] is allowed, and Plaintiffs' motion to compel [DE-74]
is denied.
I. BACKGROUND

Cybernet, LLC ("Cybernet") and Aladdin Real Estate, LLC ("Aladdin") (collectively,
"Plaintiffs") filed this case against Jonathan David, the District Attorney for the 13th
Prosecutorial District of North Carolina ("David" or the "District Attorney"), James McVicker,
the Sheriff of Bladen County ("McVicker" or the "Sheriff'), and Travis Deaver ("Deaver"), a
Deputy Sheriff of Bladen County (McVicker and Deaver are collectively referred to as the
"Sheriff Defendants"), asserting claims for conversion, declaratory judgment, takings under the

United States and North Carolina Constitutions, and deprivation of federal constitutional rights
under 42 U.S.C. § 1983, all stemming from the alleged destruction of Plaintiffs' property during
the execution of search warrants by the Bladen County Sheriff's Office. [DE-1-1].
On October 12, 2017, the Sheriff Defendants filed the instant motion to compel
deposition testimony from Jeffrey Smith ("Smith"), who is the owner of Aladdin, Compl. [DE-11]

~

14, Smith Dep. [DE-71-1] at 33:15-19. [DE-70]. On October 18, 2017, Plaintiffs filed the

instant motion to compel deposition testimony from Irene Riel ("Riel") and Glenn Emery
("Emery"), who both worked as assistant district attorneys under David at the time of the events
at issue in this case, Pls.' Mot. [DE-74]

~~

4-5. [DE-74]. Smith, Riel, and Emery each declined

to answer certain questions based on a variety of objections interposed by counsel, which
movants challenge in their respective motions. [DE-70, -74]. All case deadlines were stayed.
pending resolution of these issues. [DE-72].
II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure enable parties to obtain information by deposition.
Fed. R. Civ. P. 30. Both the appropriateness of the objections and the relevance of the questions
are at issue in the motions.
An objection at the time of the examination-whether to evidence, to a party's
conduct, to the officer's qualifications, to the manner of taking the deposition, or
to any other aspect of the deposition-must be noted on the record, but the
examination still proceeds; the testimony is taken subject to any objection. An
objection must be stated concisely in a nonargumentative and nonsuggestive
manner. A person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation ordered by the court, or to present a
motion under Rule 30(d)(3).

Fed. R. Civ. P. 30(c)(2).
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case,
2

considering 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.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(l).
Rule 37 of the Federal Rules of Civil Procedure provides that "[a] party seeking
discovery may move for an order compelling an answer . . . if a deponent fails to answer a
question asked under Rule 30 or 31[.]" Fed. R. Civ. P. 37(a)(3)(B)(i). However, the Federal
Rules also provide that
the court must limit the frequency or extent of discovery otherwise allowed by
these rules or by local rule if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to obtain the information by
discovery in the action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1 ).
Fed. R. Civ. P. 26(b)(2)(C). Additionally, "the court has 'substantial discretion' to grant or deny
motions to compel discovery." English v. Johns, No. 5:11-CT-3206-D, 2014 WL 555661, at *4
(E.D.N.C. Feb. 11, 2014) (quoting Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43
F.3d 922, 929 (4th Cir. 1995)). Finally, the party seeking the court's protection from responding
to discovery must make a particularized showing of why discovery should be denied, and
conclusory or generalized statements fail to satisfy this burden as a matter of law. See Carefirst
\

ofMd., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003).

III. DISCUSSION
A.

The Sheriff Defendants' Motion to Compel [DE-70]
The Sheriff Defendants seek an order compelling Smith to answer questions regarding

3

(1) the operations and promotions conducted at the two Cybemet, LLC stores, (2)
the purported explanation of how Cybemet, LLC's promotions operated and
complied with the law that Mr. Smith presented to Sheriff McVicker for over an
hour, (3) how different training could have helped the Sheriff Defendants better
evaluate the legality of Cybemet, LLC' s operations and promotions, and (4) what
Mr. Smith's offered demonstration and/or explanation of the operations and
promotions would have entailed ifthe Sheriff had accepted this offer.
'

Defs.' Mot. [DE-70] ,-i 2. The Sheriff Defendants contend that the instructions to Smith, from
Plaintiffs' counsel and Smith's criminal counsel, not to answer questions on these topics were
improper because they do not preserve a privilege or protect a court-ordered limitation, the
discovery sought is relevant, and Smith's pending criminal charges cannot prevent discovery in
this action. Id ,-i 3; Defs.' Mem. [DE-71] at 6-9. The Sheriff Defendants ask the court to reopen
discovery for the limited purpose of completing Smith's deposition (in up to two hours of
additional questioning), to extend the dispositive motions deadline to 14 days after the
completion of Smith's deposition, and to require Plaintiffs' counsel and Smith's criminal counsel
to pay the Sheriff Defendants' reasonable expenses and attorney's fees incurred in bringing the
motion and continuing the deposition. Defs.' Mot. [DE-70] ,-i,-i 6-7. In response, Plaintiffs
contend that the disputed questions are outside the scope of Phase I discovery and seek
privileged information, specifically information protected by N.C. Gen. Stat. § 15A-906 and the
work product doctrine. Pls.' Resp. [DE-78] at 4-10.
Plaintiffs first contend that the Sheriff Defendants' questions exceed the scope of Phase I
discovery and, thus, are irrelevant at this stage of the litigation. Pls.' Resp. [DE-78] at 4-8. The
court adopted the parties' discovery plan and ordered bifurcated discovery with (i) an initial
discovery phase focused on Defendants' liability and immunity defenses ('"Phase I discovery");
and (ii) a second phase focused on all remaining issues should immunity not be case dispositive
("Phase II discovery"). [DE-58]. The parties' discovery plan specifically provided as follows:
4

During the initial phase of discovery, discovery will be limited to matters which
relate to the Defendants' liability and their claims of absolute immunity, qualified
immunity and public official immunity, including any potential defenses to the
application of those immunities. Accordingly, without limiting the scope of the
prior sentence, discovery is appropriate into whether the Defendants acted in a
way that a reasonable official would know would violate a constitutional right,
whether the Defendants engaged in malicious, corrupt or ultra vires acts, and
whether Defendant David acted in any manner that was outside the prosecutorial
function or in violation of clearly established law. Nothing herein shall constitute
a temporal restriction limiting discovery on these subject matters to events that
took place during the execution of the search warrants at issue in this case.
[DE-57]

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2.a. The parties are in agreement that Phase I discovery encompasses the issue of whether

Defendants acted with malice. Pis.' Resp. [DE-78] at 5; see Knight Estate of Graham v. City of
Fayetteville, 234 F. Supp. 3d 669, 692 (E.D.N.C. 2017) (concluding a plaintiffs state tort claims

against defendants individual officers in their individual capacities were barred by public official
immunity where there was no evidence the officers acted with malice or corruption). However,
Plaintiffs contend that questions regarding the legality of Cybemet's promotions are not relevant to
the issues of Defendants' liability or malice. Pls.' Resp. [DE-78] at 5-8. The court disagrees.
Plaintiffs allege in the complaint that the
Sheriffs malicious intent is evidenced by the fact that on several occasions prior
to the Raids, Plaintiffs had invited both the Sheriff and the District Attorney to
visit both Store 1 and Store 2 and to view everything in both buildings and to
review the manner in which Cybernet conducted its business. Therefore, no
"raid" of any kind was necessary for the District Attorney and the Sheriff to carry
out the lawful duties of their respective offices, and the Raids were gratuitous
exercises of excessive force.
Compl. [DE -1-1]

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110.

Additionally, Plaintiffs' response, without objection, to written

discovery regarding the above allegation in the Complaint stated that "Smith spent over an hour
explaining [to Sheriff Mc Vicker] how those promotions operated and complied with the law, and
also that he felt that law enforcement was poorly trained in applying the laws applicable to those
promotions." Defs.' Mem., Ex. 4 [DE-71-4] at 2 (emphasis added); see also Smith Dep. [DE-715

1] at 104:5-25 (Smith testified that he "offered the sheriff to come and review the operation at
. any time and [he'd] be happy to go over it with him" and that the sheriffs refusal to do so prior
to executing the search warrant was part of his malice claim). In Plaintiffs' response to the
instant motion, they provide yet another example of the purported malice that is likewise related
to Smith's perception of how the promotions function, to wit: "that Sheriff Defendants obtained
search warrants through false pretenses by submitting affidavits that contained false statements
and omitted material facts how the promotions being offered by the two stores worked." Pls.'
Resp. [DE-78] at 2 (emphasis added). Therefore, Smith's understanding of how the operations
and promotions were conducted at the Aladdin stores, Smith's explanation of how the
promotions operated and complied with the law that Smith presented to McVicker, how Smith
believed different training could have helped the Sheriff Defendants better evaluate the legality
of the operations and promotions, and what Smith's offered demonstration and/or explanation of
the operations and promotions would have entailed if McVicker had accepted this offer are all
relevant to the issue of alleged malice on the part of the Sheriff Defendants and are squarely
within the scope of Phase I discovery. Accordingly, Plaintiffs' relevance objection as to this line
of questioning is overruled.
Plaintiffs next contend that the i~ormation sought is privileged pursuant to N.C. Gen.
Stat.·§ 15A-906 and the work-product doctrine. Pls.' Resp. [DE-78] at 8-10. Plaintiffs believe
that the Sheriff Defendants are attempting to obtain information to be utilized in a pending
criminal prosecution of Smith, which the District Attorney was leading until his office was
disqualified from the case, and in which the Sheriff Defendants may be witnesses. Id at 9.

6

N.C. Gen. Stat. § 15A-906, Disclosure of evidence by the defendant - Certain evidence
not subject to disclosure, provides as follows:
Except as provided in G.S. 15A-905(b) this Article does not authorize the
discovery or inspection of reports, memoranda, or other internal defense
documents made by the defendant or his attorneys or agents in connection with
the investigation or defense of the case, or of statements made by the defendant,
or by prosecution or defense witnesses, or by prospective prosecution witnesses or
defense witnesses, to the defendant, his agents, or attorneys.
This is a state law of criminal procedure, which "applies to cases within the original jurisdiction
of the superior court." N.C. Gen. Stat. § 15A-901. Plaintiffs cite no authority for applying it in a
civil case, and the court has independently found none. Therefore, the court declines to apply
N.C. Gen. Stat.§ 15A-906 in this case.
The work-product privilege generally protects "the mental processes of the attorney,
providing a privileged area within which he can analyze and prepare his client's case," United
States v. Nobles, 422 U.S. 225, 238 (1975), and has been incorporated, in part, into the Federal
Rules of Civil Procedure:
Ordinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party's attorney, consultant, surety, indemnitor,
insurer, or agent). But, subject to Rule 26(b)(4), those materials may be
discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1 ); and
(ii) the party shows that it has substantial need for the materials to prepare
its case and cannot, without undue hardship, obtain their substantial equivalent by
other means.
Fed. R. Civ. P. 26(b)(3)(A). 1 While the work-product provision in the Federal Rules applies to
"documents and tangible things," id., the common law work-product privilege also covers

1

"In matters involving the attorney work product protection, federal courts are to apply federal law, as opposed to
state law ...." Spilker v. Medtronic, Inc., No. 4:13-CV-76-H, 2014 WL 4760292, at *4 (E.D.N.C. Sept. 24, 2014)
(citation omitted).

7

"counsel's mental impressions, conclusions or opinions [] sought in the context of a deposition,
rather than as memorialized on paper[.]" Maynard v. Whirlpool Corp., 160 F.R.D. 85, 87
(S.D.W. Va. 1995) (citing Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451
(1947)). "In claiming the work-product privilege, the party must demonstrate that the documents
in question were created 'in preparation for litigation."' NL.R.B. v. lnterbake Foods, LLC, 637
F.3d 492, 501-02 (4th Cir. 2011) (quoting In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th
Cir. 1994)).

The proponent of work-product protection has the burden of establishing its

applicability. Sandberg v. Va. Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992).
'

'

Plaintiff argues that information related to the legality of the promotions was procured in
anticipation of litigation. Pls.' Mem. [DE-78] at 9. In support of this argument, Plaintiffs
explain that "[t]he entire reason that Mr. Smith discussed the promotions with the Sheriff during
the campaign is that he anticipated that law enforcement might take f!Ction against Cybemet,
which he was trying to avoid." Id. (citing Smith Dep. [DE-71-1] at 107-08). However, the
work-product immunity may be "waived if the client, the client's lawyer, or another authorized
agent of the client: ... (4) discloses the material to third persons in circumstances in which there
is a significant likelihood that an adversary or potential adversary in anticipated litigation will
obtain it." Cont'! Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761, 772 (D. Md. 2008)
(quoting Restatement (Third) of the Law Governing Lawyers§ 91 (2000)). Thus, even assuming
that the information sought from Smith was at one time protected work product, Smith's
disclosure of the information to McVicker, whom Smith believed to be a potential adversary in
anticipated litigation, and Smith's offer to further discuss the information with McVicker in an
effort to avoid a potential raid on his businesses, demonstrates that Smith had no expectation of
maintaining, and has in fact waived through disclosure, any privilege related to his understanding
8

of the operation and legality of the promotions. See Defs.' Mem., Ex. 4 [DE-71-4] at 2 ("Smith
spent over an hour explaining [to Sheriff McVicker] how those promotions operated and
complied with the law, and also that he felt that law enforcement was poorly trained in applying
the laws applicable to those promotions.") (emphasis added); Smith Dep. [DE-71-1] at 104:5-20
(Smith testified that he "offered the sheriff to come and review the operation at any time and
[he'd] be happy to go over it with him"); Doe v. United States, 662 F.2d 1073, 1081 (4th Cir.
1981) (holding that voluntary disclosure of "otherwise protected work product to someone with
interests adverse to ... those of the client, knowingly increasing the possibility that an opponent
will obtain· and use the material, [] may be deemed to have waived work product protection.")
(citing cases). Accordingly, the information sought is not protected attorney work product.
Having determined that the information sought is relevant and within the scope of Phase I
discovery, and not protected by any asserted privilege, the court finds good cause to reopen
discovery for the limited purpose of completing Smith's deposition (in up to two hours of
additional questioning) by no later than February 23, 2018, and to extend the dispositive
'

motions deadline to March 9, 2018.
Sheriff Defendants also ask the court to require Plaintiffs' counsel and Smith's criminal
counsel to pay the Sheriff Defendants' reasonable expenses and attorney's fees incurred in
bringing the motion and continuing the deposition.

The court finds that the circumstances

presented, i.e., the pendency of the criminal prosecution, justify the cautious approach of Smith's
counsel, notwithstanding the court's ultimate decision overruling the objections, would make an
award of expenses unjust. See Fed. R. Civ. P. 37(d)(3). Accordingly, the court in its discretion
declines to award expenses and attorney's fees incurred in bringing the motion and continuing
the deposition.
9

B.

Plaintiffs' Motion to Compel [DE-74]
Plaintiffs seek an order to compel Glenn Emery and Irene Riel to reappear for deposition

and answer questions these deponents previously refused to answer on a variety of grounds,
including attorney-client privilege, work-product privilege, and law enforcement privilege,
which Plaintiffs contend are improper objections. Pls.' Mem. [DE-75] at 2-17. Plaintiffs argue
that the questions seek information relevant to the issue of malice and Defendants' assertion of
immunity, specific factual allegations of the complaint, and the intent of Defendants. Pls.' Mot.
[DE-74]

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9. Plaintiffs also seek costs and attorney's fees associated with reopening the

depositions and bringing the instant motion.

Id.

~

10.

In response, the District Attorney

contends that the objections asserted at the deposition were proper and that certain information
sought is not relevant. Def.'s Resp. [DE-81] at 6-19.
Having reviewed the complete deposition transcripts, in light of the allegations in the
complaint and the defenses asserted, the court finds that the disputed questions are outside the
scope of discovery permitted by Rule 26(b)(1 ), because they are either (1) irrelevant or not
proportional to the needs of the case, or (2) are unreasonably cumulative or duplicative, and,
therefore, must be precluded pursuant to Rule 26(b)(2)(C)(i) and (iii).
The court has previously recognized that Plaintiffs' claims are directed to the destruction
of Plaintiffs' property during the execution of search warrants and do not challenge the validity
of those search warrants but rather the manner in which the search warrants were executed. See

Cybernet, LLC v. David, No. 7:16-CV-16-RJ, 2016 WL 5106986, at *5 (E.D.N.C. Sept. 19,
2016) (citing Compl. [DE-1-1]

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144-65).

Likewise, Plaintiffs have not asserted separate

claims based on the District Attorney and Sheriff holding a press conference or for malicious
prosecution, and Plaintiffs' claims do not tum on the
10

lega~ity

of sweepstakes games. Id. at *8-9.

Nevertheless, Plaintiffs' depositions of Emery and Riel sought to explore at great length these
very issues, e.g., the legality of sweepstakes games, the legality of the search warrants, the press
conference, and the criminal prosecution of the Smiths. Plaintiffs' allegation of malice on the
part of the District Attorney because he prosecuted the Smiths, requested high bond for the
Smiths, and later brought additional charges against the Smiths, is not a license to delve into the
inner workings of the District Attorney's Office or the prosecutorial decisions associated with
the Smith's criminal cases. As evidenced by the below summary of pertinent testimony, Emery
and Riel more than sufficiently responded to questions regarding these tangential issues.
Emery testified at his deposition, in relevant part, as follows: he was the prosecutor
assigned to Smith's initial criminal case in 2013 and to Smith's 2016 criminal case until the
District Attorney's Office was recused, Emery Dep. [DE-85-1] at 41:21-44:3; he was not
prepared to define "sweepstakes" because he thought it called for a very long legal opinion, he
did not have reference to the statutes, among other things, and it would require applying the
statutes to a

~pecific

set of facts, id at 58:4-59:3; he received some training on sweepstakes law

as part of a training at the Conference of District Attorneys a few years prior, but he did not
recall whether he received training materials and, if so, whether he kept them, id at 59:13-24,
60:23-7; he was not consulted by the Sheriff on either of Smith's criminal cases that he
prosecuted, id. at 90:7-17; he did not assist in the Sheriff's investigation of the Aladdin stores,
but may have had some advisory role with reference to which statutes to investigate, although he
did not specifically recall being consulted or giving such advice, id. at 116:10-24; he believed
the Sheriff relied on Ronnie Mitchell, an attorney in Cumberland County, for legal advice, id at
118:3-17; the District Attorney played no role in the investigation, other than attending one
meeting, and he was not aware of anyone else in the District Attorney's Office who was involved
11

in the investigation, id. at 122:9-13; he did not recall being present at any meetings on the day
the search warrants were executed, id. at 144:8-16,

152:17~153:1;

he was present as an observer,

for less than an hour, at the Aladdin stores while the search was being conducted, but did not
speak to anyone regarding anything substantive, and did not advise anyone regarding what
should be seized or direct anyone to cause damage during the search, id. at 146:1-17, 154:18155:9, 164:2--6, 179:8-20, 192:2--4, 193:3-7; during the execution of the search warrants he
observed documents being collected, photographs being taken, electrical equipment being seized,
and he did not see anyone cutting cables, removing LED lights, drilling open a safe, opening an
ATM, or being on the roof, id. at 177:4-178:20, 218:1-14; the District Attorney and Sheriff were
not at the Aladdin stores while he was there during the execution of the search warrants, id. at
236:15-18; he had nothing to do with the preparation of the search warrants, did not review the
search warrants or affidavit in support before they were served, and it was not

h~s

practice to

assist in drafting search warrants, id. 157:5-12, 170:1-5, 198:15-25; he did not know why
certain information was left out of the affidavit in support of the search warrants and did not
provide advice to the Sheriffs Office in that regard on the Aladdin warrants or any other
warrants, id. at 204:16-205:15, 211:7-16, 216:9-16; typically, he would not review a search
warrant from a case he was prosecuting until the case was going to trial, unless a potential
problem was brought to his attention, id. at 169:14-25; he would not have contacted the Smiths
for assistance with executing the search warrants because it was a pending case and they were
represented by counsel, and he was unaware whether the Sheriff would have done so because he
did not know the Sheriffs practice in executing search warrants, id. at 178:12-179:7; he did not
accept Smith's offer to visit the stores and learn about the operations because he "was not
interested in being a witness in [his] own case," and he did not have the District Attorney's
12

investigator do so because his office does not give advisory opinions to the public, id. at 224:21225:25; he was not involved with the press conference held by the District Attorney and Sheriff
on the day the search warrari.ts were executed, he did not know whether the District Attorney's
remarks were prepared ahead of time and, if so, who prepared them, and there was not a person
in the District Attorney's Office who was in charge of writing press releases, id. at 230:4-9,
233:5-234:2; he believed he would have given advice on what charges to bring against whom
based on what was told to him by law enforcement, but had not examined the seized evidence at
the time the Smiths were charged and was not involved in the Smith's arrest, id. at 244:5-22; he
played no role when the Smiths were taken before the magistrate, was not aware that anyone else
in the District Attorney's Office, including Irene Riel, was involved, and he had never tried to
influence a magistrate with respect to the size of a bond, explaining that the law enforcement
officer presents the charges and brings the defendant to the magistrate, id. at 246:6-21, 254:1423, 270:1-6; he made the indictment decisions with respect to the Smiths and drafted additional
indictments against them, which were presented to the grand jury at the same time as the original
charges, but he did not present them personally to the grand jury because that is done solely by
the law enforcement officer, id. at 256:15-18, 257:7-258:12; and he did not believe factually
inconsistent charges were brought against the Smiths, and stated it was standard practice to
examine the relevant statutes before bringing a charge, id. at 268:22-15.
Riel testified at her deposition, in relevant part, as follows:

she was previously an

assistant district attorney in Bladen County along with Glenn Emery, ·id. at 17:1-21; she never
prosecuted cases involving sweepstakes or the like, never received training from the District
Attorney's Office regarding those types of cases, and was not involved in the investigation of the
Aladdin stores or any cases against the Smiths, id. at 22:7-17, 24:9:-21, 25:6-9; she knows
13

nothing about the legality of electronic sweepstakes or video games and has never even read the
statute, id at 26: 11-13; she attended a meeting on March 17, 2015, which included members of
the Bladen and Cumberland County Sheriffs Departments, the District Attorney and members of
his staff, and Ronnie Mitchell, related to the operations of the Aladpin stores, but she did not
recall any specifics that were discussed, did not recall any discussions specifically about the
Aladdin stores, did not contribute substantively during the meeting, and believed the members of
her office were doing more listening and Cumberland County was doing more talking about how
they handled sweepstakes-type cases, id. at 31:12-32:7, 33:1-34:12;-other than sitting in on a
meeting, she had no involvement in any of the process or decision-making related to the Aladdin
case, id at 39:1-9; she had never seen the Aladdin search warrants or affidavit in support, id. at
43:23--44:3; she was present during a portion of the search of the Aladdin stores, was there on
her own initiative and not at the request of the Sheriff, and was not looking for anything in
particular, id. at 46:24--48:14; the Aladdin stores were empty and they were "packing up" by the
time she arrived, she walked through and briefly spoke with law enforcement officers but did not
recall what they spoke about, and she did not recall seeing any member of law enforcement
causing damage at the stores, id. 54:22-56:14, 60:1-21, 61:19-20, 62:2-6; she did not recall
seeing the District Attorney at the Aladdin stores, id 57:13-16; she did not attend any preexecution or staging meetings at the District Attorney's Office or with the Sheriffs Office, id at
59:15-22; she learned of the press conference just before it happened and was in attendance, but
had no role in preparing the District Attorney's remarks, and did not find the timing of the press
conference unusual, id at 64:14-65:2, 66:24-67:4, 68:7-69:8; she had no role in connection with
the arrest warrants issued for the Smiths and no involvement in determining how to charge the
Smiths, id. at 70:16-25; she did not recall having any role in connection with the Smith's bond
14

hearing and did not recall requesting a bond amount, explaining that normally bond is set when a
warrant is issued and the suspect is brought before the magistrate, and that she was generally
never part of that process and specifically was not involved in the Smiths' case, id at 71:1273:25, 77:8-78:1, 79:25-80:11.
Emery and Riel testified extensively regarding their knowledge of, and the extent of any
involvement in, the execution of the search warrants at issue in this case. They also provided
sufficient testimony regarding what they knew about the Sheriffs Office investigation of the
Aladdin stores, the preparation of the search warrants, the press conference, and the Smiths'
criminal cases, including the bond issue.

The deposition testimony recounted above belies

Plaintiffs' contention that counsel "would not allow a single question of either Mr. Emery or Ms. Riel regarding why they were at the meetings or raids or their communications with law
enforcement during those events" and "shut down all lines of questions" regarding the press
conference and the Smiths' bond. Pis.' Mem. [DE-75] at 13-14. The questions they refused to
answer, [DE-74] at 4-8, fall outside the scope of discovery because they are either not relevant to
the claims and defenses at issue in this case, are not proportional to the needs of the case, or they
were sufficiently addressed in response to other questions and, thus, are cumulative or
duplicative. Pursuant to Rule 26(b)(2)(C)(i) and (iii), the court "on motion or on its own, ...

must" limit the extent of such discovery. Accordingly, the court need not reach the privilege
issues, and the motion to compel is denied.

IV. CONCLUSION
For the reasons stated above, Defendants James McVicker and Travis Deaver's motion to
compel [DE-70] is allowed, and Plaintiffs' motion to compel [DE-74] is denied.
15

SO ORDERED, the 9th of February 2018.

16