Poole v. Gaston County et al
Filing
93
ORDER granting 84 Motion to Compel, and Plaintiff shall provide evidence and responses as directed herein, by May 19, 2017, and continue through the remainder of this lawsuit to supplement its responses to Defendants discov ery requests as is necessary and appropriate; FURTHER ORDERED that Plaintiff shall reimburse Defendants for their reasonable expenses incurred in preparing and filing Document Nos. 84, 85; FURTHER ORDERED that Defendants shall provide their expert report to Plaintiffs counsel on or before June 2, 2017. Signed by Magistrate Judge David Keesler on 5/12/2017. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-309-DCK
GENGER POOLE, as Administrator of the
Estate of William Dean Poole,
Plaintiff,
v.
GASTON COUNTY; T.R. EARL; J.E.
KNUPP; A.O. HOLDER; and
W.P. DOWNEY,
Defendants.
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ORDER
THIS MATTER IS BEFORE THE COURT on “Defendants’ Motion To Compel”
(Document No. 84). The parties have consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C §636(c), and this motion is ripe for disposition. Having carefully considered the motion
and the record, the undersigned will grant the motion.
FACTUAL BACKGROUND
On March 16, 2015, William Dean Poole (“Poole”) called the Veteran’s Crisis Line and
expressed an intention to commit suicide. (Document No. 2, p.3; Document No. 26, pp.4-7). The
Veteran’s Crisis Line then called 911. Id. Gaston County Police were dispatched to the scene and
observed Mr. Poole on a lawn mower alone in the yard. (Document No. 2, p.4; Document No.
22-11, p.2;
Document No. 26, pp.7-8).
Police approached Mr. Poole, and after a brief
confrontation, Poole was shot by multiple officers and killed. (Document No. 2, p.4; Document
No. 26, p.8). Plaintiff does not dispute these facts, and these facts mirror the alleged facts in the
Complaint. (Document No. 2).
There are factual disputes about the actual confrontation. Defendants have submitted
affidavits from the responding officers that say that Poole, upon seeing police, drew a firearm from
a holster, raised the firearm in the air, and lowered the firearm towards the police officers.
(Document. Nos. 20-10, 20-11, 20-12, and 20-13). The officers responded to this action by
discharging their weapons and killing Poole. Id. However, Plaintiff alleges that Mr. Poole did not
brandish a weapon and complied with police orders. (Document. No. 2, p.5; Document No. 26,
p.8).
On March 17, 2015, attorneys Charles Ali Everage and S. Juwaun Seegars met with Genger
Poole, regarding the March 16, 2015 shooting death of her husband, William Dean Poole.
(Document No. 88, pp.1-2). That same day, Mr. Everage and Mr. Seegars (“Plaintiff’s counsel”)
met with J.C. Dowell, Jr. (“Dowell”), a neighbor and witness to the shooting. (Document No. 88,
p.2). Plaintiff’s counsel immediately took a written statement of Mr. Dowell, who appeared to be
of advanced age and in poor health. Id.; see also, (Document No. 26-4).
Plaintiff previously submitted Mr. Dowell’s statement in responding to “Defendant Gaston
County’s Rule 12 Motion To Dismiss.” See (Document No. 26-4). Dowell stated he was an
eyewitness to the confrontation and that Poole appeared to cooperate with police requests to raise
his hands in the air. Id. Dowell also alleges that Poole did not have a gun in his hand when he
raised his hands in the air, but instead may have been holding something square and flat, like a
wallet. Id.
Due to Mr. Dowell’s advanced age and poor health, Plaintiff’s attorneys contracted with
private investigator Charles Williams (“Williams”) to take a recorded statement of Mr. Dowell in
the presence of a videographer on May 19, 2015. Id. Also on that date, Williams took statements
from additional witnesses and others in the immediate neighborhood of where the shooting
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occurred, as well as statements from Genger Poole and her family members, including Robert
Hinson and Tabitha Hinson. Id.
PROCEDURAL BACKGROUND
Genger Poole (“Plaintiff”), as Administratrix of the Estate of William Dean Poole, initiated
this action with the filing of her “Complaint” (Document No. 2) on July 17, 2015. The Complaint
asserts a wrongful death action based on the alleged shooting of Poole on March 16, 2015, by
Sergeant J.E. Knupp (“Knupp”), Sergeant W.P. Downey (“Downey”), Officer T.R. Earl (“Earl”),
and/or Officer A.O. Holder (“Holder”) of the Gaston County, North Carolina Police Department.
(Document No. 2). Specifically, Plaintiff asserts causes of action for: (1) excessive force in
violation of 42 U.S.C. § 1983 and the Fourth Amendment against Gaston County; (2) excessive
force in violation of 42 U.S.C. § 1983 and the Fourth Amendment against Knupp, Downey, Earl,
and Holder; (3) public entity liability, pursuant to 42 U.S.C. § 1983, against Gaston County; (4)
assault and battery against all Defendants; and (5) violation of Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12101, against Gaston County. Id.
“Defendants J.E. Knupp, W.P. Downey, T.R. Earl, And A.O. Holder’s Rule 12 Motions
To Dismiss” (Document 22) and “Defendant Gaston County’s Rule 12 Motion To Dismiss”
(Document No. 24) were filed on September 28, 2015. On August 11, 2016, the Honorable Frank
D. Whitney, Jr. issued an “Order” (Document No. 32) granting the motions in part, and denying
the motions without prejudice in part. Chief Judge Whitney stated that “the state law claims
against Gaston County and its employees in their public capacities are DISMISSED due to
governmental immunity. Dismissal of Plaintiffs’ other claims are not appropriate at this time based
on the limited record before the Court.” (Document No. 32, p.13).
3
On September 1, 2016, the parties filed their “Certification And Report Of F.R.C.P. 26(f)
Conference And Discovery Plan” (Document No. 38). In that filing, the parties indicated that they
consent to the jurisdiction of a U.S. Magistrate Judge in this case. (Document No. 38, p.2). The
parties’ “Joint Stipulation Of Consent To Exercise Jurisdiction By A United States Magistrate
Judge” (Document No. 52) was then filed on September 7, 2016, and this matter was immediately
assigned to Magistrate Judge David C. Keesler as the presiding judge.
The undersigned issued a “Pretrial Order And Case Management Plan” (Document No. 58)
on September 9, 2016. The “…Case Management Plan” includes the following deadlines:
discovery completion – June 16, 2017; mediation report – July 1, 2017; dispositive motions –
July 14, 2017; and trial– January 2, 2018. (Document No. 58). The trial of this case, if necessary,
has since been re-set for the undersigned’s civil term beginning October 30, 2017. (Document No.
73).
Defendants contend that Plaintiff submitted initial disclosures on October 17, 2016, but
failed to identify witness statements given by several individuals. (Document No. 85, p.2). After
receiving a letter addressing allegedly deficient discovery responses, Plaintiff provided the video
statement of J.C. Dowell, Jr., on or about March 8, 2017, but asserted attorney-work privilege
regarding the other video statements. Id.
Now pending before the Court is “Defendants’ Motion To Compel” (Document No. 84)
and “…Memorandum Of Law In Support…” (Document No. 85), filed on March 17, 2017.
“Plaintiff’s Response In Opposition To Defendants’ Motion To Compel” (Document No. 88) was
filed on March 31, 2017; and “Defendants’ Reply…” (Document No. 90) was filed on April 11,
2017. The pending motion is ripe for review and disposition.
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STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
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, 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)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
(1947). However, “[t]he court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Whether to grant or deny a motion to compel is generally left within a district court’s broad
discretion. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th
Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion); Erdmann v.
Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s substantial
discretion in resolving motions to compel); and LaRouche v. National Broadcasting Co., 780 F.2d
1134, 1139 (4th Cir. 1986) (same). A party’s failure to provide or permit discovery may result in
sanctions including the following: reasonable expenses caused by the failure; default judgment
against the disobedient party; or treating as contempt of court the failure to obey any order. See
Fed.R.Civ.P. 37(a) - (d).
DISCUSSION
By the pending motion, Defendants request that the Court compel Plaintiff to provide all
the video witness statements reviewed by Plaintiff’s expert witness, Roy G. Taylor (“Taylor”), and
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compel Plaintiff to provide full and complete answers to Defendants’ interrogatories and request
for production of documents. (Document No. 84; Document No. 85, pp.1-2).
A.
Video Witness Statements
First, Defendants note that Mr. Taylor reviewed several video witness statements when
formulating his opinion in this matter, but despite being served with a subpoena commanding the
production of all materials Taylor reviewed, Plaintiff has objected and asserted that all but one of
the video statements are protected pursuant to attorney-work product privilege. (Document No.
85, p.4) (citing Document Nos. 84-6, 84-7 and 84-10). Defendants contend that Taylor reviewed
video statements of J.C. Dowell, Lorrie Martin, Dwayne Moore, Genger Poole, Bill Flanders, Mrs.
Hinson, and Robert Hinson. (Document No. 85, p.2) (citing Document No. 84-11) (citing
Document No. 84-7, p.14).1 To date, only the video statement of Dowell, who is now deceased,
has been provided to Plaintiffs. (Document No. 85, p.2; Document No. 88, p.6).
Defendants argue that “[i]t is axiomatic that if one party’s expert reviews certain material
in forming their opinions then the other party’s expert is entitled to the same. A litigant is required
to disclose to his opponent any information ‘considered’ by the litigant’s testifying expert.”
(Document No. 85, pp.4) (citing Nutrasweet Co. v. X-L Engineering Co., 227 F.3d 776, 785-86
(7th Cir. 2000)). Defendants contend that an overwhelming majority of courts addressing the issue
before this Court have concluded pursuant to Fed.R.Civ.P. 26(a)(2)(B), a party must disclose all
information provided to its testifying expert for consideration in the expert report, including
information otherwise protected by attorney-client privilege or the work product privilege. Id.
(citations omitted).
1
Plaintiff notes that the correct identities of the persons interviewed on video by its private investigator
are: J.C. Dowell, Laurie Martin, Wayne Moore, Genger Poole, Bill Landry, Tabitha Hinson, and Robert
Hinson. (Document No. 88, p.4).
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Included among Defendants’ numerous citations is an instructive decision from the United
States District Court for the District of South Carolina. (Document No. 85, pp.4-5). In American
Fidelity Assurance Co. v. Boyer, 225 F.R.D. 520 (D.S.C. 2004) the South Carolina court relied in
part on the commentary to Rule 26(a)(2)(B), which provides that:
Paragraph (2)(B) requires that persons retained or specially
employed to provide expert testimony, or whose duties as an
employee of the party regularly involve the giving of expert
testimony, must prepare a detailed and complete written report,
stating the testimony the witness is expected to present during direct
examination, together with the reasons therefor. . . . Rule
26(a)(2)(B) does not preclude counsel from providing assistance to
experts in preparing the reports, and indeed, with experts such as
automobile mechanics, this assistance may be needed.
Nevertheless, the report, which is intended to set forth the substance
of the direct examination, should be written in a manner that reflects
the testimony to be given by the witness and it must be signed by
the witness.
The report is to disclose the data and other information
considered by the expert and any exhibits or charts that summarize
or support the expert’s opinions. Given this obligation of disclosure,
litigants should no longer be able to argue that materials
furnished to their experts to be used in forming their opinions-whether or not ultimately relied upon by the expert--are
privileged or otherwise protected from disclosure when such
persons are testifying or being deposed.
See Advisory Committee Notes to Fed.R.Civ.P. 26 (emphasis added), and American Fidelity
Assurance Co., 225 F.R.D. at 521.
American Fidelity Assurance Co. also cites Musselman v. Phillips, 176 F.R.D. 194 (D.Md.
1997) for its finding that a number of courts and commentators have concluded that, under Rule
26(a)(2)(B), “if an attorney provides work product to an expert who considers it in forming
opinions which he or she will be testifying to at trial, this information is no longer privileged and
must be disclosed.” American Fidelity Assurance Co., 225 F.R.D. at 521 (quoting Musselman v.
Phillips, 176 F.R.D. at 197). See also Karn v. Ingersoll-Rand, 168 F.R.D. 633, 639-41 (N.D.Ind.
7
1996) (“Rule 26(a)(2)(B) requires disclosure of any information considered by a testifying expert
in reaching his or her opinion, which means anything reviewed by an expert who will testify,
including written or oral lawyer-expert communications, even though such information may
constitute opinion work product”), and In re Pioneer Hi-bred Int’l, Inc., 238 F.3d 1370, 1375-76
(Fed. Cir. 2001) (“the 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure make
clear that documents and information disclosed to a testifying expert in connection with his
testimony are discoverable by the opposing party, whether or not the expert relies on the documents
and information in preparing his report”).
Defendants conclude that they are entitled to review all the video statements considered by
Plaintiff’s expert, Roy Taylor. (Document No. 85, pp.5-6).
In addition, Defendants assert that Plaintiff failed to make proper disclosures of the video
statements pursuant to Fed.R.Civ.P. 26(a)(1)(A)(ii). (Document No. 85, p.6) (citing Fed.R.Civ.P.
26(a); 34(a); and 37(a)(3)(A). Defendants also argue that Plaintiff should now be compelled to
supplement her disclosures. (Document No. 85, p.6).
In response, Plaintiff contends that the video statements are protected by the work product
privilege, and that there is no evidence that Taylor relied on “these privileged statements.”
(Document No. 88, p.5). The crux of Plaintiff’s argument in response to the motion to compel is
that in disclosing Mr. Dowell’s video statements, Plaintiff “inadvertently included other privileged
recorded statements prepared by Plaintiff’s attorney/private investigator,” and therefore, the work
product privilege was not waived. Id. (quoting Nutramax Labs., Inc. v. Twin Labs. Inc., 183
F.R.D. 458, 463-64 (D.Md. 1998) (quoting In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981) (work
product privilege “can only be waived or forfeited by actions of the attorney or client which are
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consistent with a ‘conscious disregard of the advantage that is otherwise protected by the work
product rule.’”).
Plaintiff further argues that this Court should follow other district courts within the Fourth
Circuit and apply an “intermediate balance approach” to determine whether inadvertent production
of work-product protected material constitutes waiver; even though the cases cited by Plaintiff
acknowledge that the Fourth Circuit has yet to decide which approach it will follow, and point out
that the Fourth Circuit is “more inclined to adopt the strict approach than the intermediate or lenient
one.” (Document No. 88, p.3) (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251,
257-59 (D.Md. 2008) (citing Hopson v. Mayor of Baltimore, 232 F.R.D. 228, 235-38 (D.Md.
2005)).
Under the strict approach, there is a waiver of attorney work-product protection of
inadvertent production “because once disclosed, there can no longer be any expectation of
confidentiality.” Stanley, 250 F.R.D. at 258. The intermediate test requires the court to balance
the following factors to determine whether inadvertent production of attorney-client privileged
materials waives the privilege:
(1) the reasonableness of the precautions taken to prevent
inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures;
(4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.
Id. (citing McCafferty’s, Inc., v. Bank of Glen Burnie, 179 F.R.D. 163, 167 (D.Md.1998)); see
also (Document No. 88, p.3).
In reply, Defendants argue that even though Taylor did not specifically mention the
interviews in his report, he “testified that he did review the video interviews and thus would have
considered their impact.” (Document No. 90, p.2) (citing Document No. 90-1). Defendants then
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re-assert that courts have directly addressed the essence of Plaintiff’s arguments elsewhere and
have held:
amendments to Rule 26 of the Federal Rules of Civil Procedure
make clear that documents and information disclosed to a testifying
expert in connection with his testimony are discoverable by the
opposing party, whether or not the expert relies on the documents
and information in preparing his report. Rule 26(a)(2) requires that
the testifying expert’s report “contain a complete statement of all
opinions to be expressed and the basis and reasons therefor; the data
or other information considered by the witness in forming the
opinions; ....” The accompanying Advisory Committee Note
explicitly states that “[t]he report is to disclose the data and other
information considered by the expert.... Given this obligation of
disclosure, litigants should no longer be able to argue that materials
furnished to their experts to be used in forming their opinions—
whether or not ultimately relied upon by the expert—are privileged
or otherwise protected from disclosure when such persons are
testifying or being deposed.” See also TV-3, Inc. v. Royal Ins. Co.
of Am., 194 F.R.D. 585, 589 (S.D.Miss. 2000) (correspondence
between counsel and expert witness is discoverable, “given plain
language of Rule 26(a)(2) and its accompanying Advisory
Committee Note”). The revised rule proceeds on the assumption
that fundamental fairness requires disclosure of all information
supplied to a testifying expert in connection with his testimony.
Indeed, we are quite unable to perceive what interests would be
served by permitting counsel to provide core work product to a
testifying expert and then to deny discovery of such material to the
opposing party.
(Document No. 90, p.2) (quoting In re Pioneer Hi-Bred International, Inc., 238 F. 3d 1370, 137576 (Fed. Cir. 2001).
Defendants suggest that fact based work-product may be subjected to the intermediate test
outlined by Plaintiff; “[h]owever, when the materials are provided to an expert no such test is
needed.” (Document No. 90, p.3). See also Lamonds v. GMC, 180 F.R.D. 302, 305 (W.D.Va.
1998) (“Where, however, an attorney provides work product material to one of her retained experts
to be considered in the formulation of that expert’s opinion, the current rules and Advisory
Committee’s Notes strongly suggest that that information is discoverable.”). In addressing a
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similar situation to the present case where a plaintiff argued that the expert did not rely on the
disclosed materials, the Lamonds court opined that “asking a court to determine whether an expert
actually relied on work product documents involves exploration of the expert’s mental processes
and risks creation of an unwieldy rule that would not provide certainty as to the protected status of
work product materials.” Lamonds, 180 F.R.D. at 306. See also Suskind v. Home Depot Corp.,
2001 WL 92183 at *4 (D.Mass. Jan. 2, 2001) (“it is improper to restrict disclosure to only those
materials relied on by the expert witness. The word is ‘considered’ and encompasses those
materials which the witness was furnished and read but which the witness rejected.”)
Defendants conclude that where, as here, “it is undisputed that Plaintiff provided the
claimed privileged materials to her expert and her expert reviewed said materials in formulating
his opinions,” the “Plaintiff has waived the privilege and should be compelled to provide the
materials requested.” (Document No. 90, p.3).
The Court finds Defendants’ arguments persuasive. The undersigned is particularly struck
by Plaintiff’s failure to address Defendants’ main argument and supporting authority.
See
(Document No. 88). The response does not address or attempt to distinguish Fed.R.Civ.P.
26(a)(2)(B) and other caselaw cited by Defendants, nor does it identify any other authority
regarding disclosure of work product materials to a testifying expert as occurred in this case.
Compare (Document No. 85 and 88). See also, S.E.C. v. Reyes, stating:
Prior to 1993, courts were split on the question of whether
communications between an attorney and a testifying expert were
discoverable. See Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D.
384, 387 n. 3 (N.D.Cal.1991) (collecting cases). In 1993, however,
the discovery rules were amended to require the disclosure of “the
data or other information considered by [expert witnesses] in
forming [their] opinions.” Fed.R.Civ.P. 26(a)(2)(B). Since the
amendment, courts have overwhelmingly, though not uniformly,
imposed a “bright-line rule” that all materials considered by a
testifying expert, including attorney work product, must be
11
disclosed. Regional Airport Authority of Louisville, 460 F.3d at 715;
In re Pioneer Hi–Bred International, 238 F.3d at 1375; Karn v.
Ingersoll–Rand, 168 F.R.D. 633, 637–41 (N.D.Ind.1996). But see
Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 292–96
(W.D.Mich.1995). This Court concurs in the “majority view” that
Rule 26(a)(2)(B) requires the disclosure of all materials considered
by, presented to, or relied upon by a testifying expert in forming his
or her opinions, regardless of whether they might otherwise be
protected by the work-product privilege.
Regional Airport
Authority of Louisville, 460 F.3d at 715.
S.E.C. v. Reyes, 2007 WL 963422, at *1, n.1 (N.D.Cal. Mar. 30, 2007).
The undersigned finds that Fed.R.Civ.P. 26(a)(2)(B), and the Advisory Committee Notes
and cases addressing that Rule, favor production of the materials provided to Plaintiff’s expert,
even if they were provided inadvertently. In addition to the foregoing, the undersigned finds two
other cases instructive on this point. In In Re Vioxx, for example, the court specifically declined
“to carve out an exception into this ‘bright-line’ rule for instances where core attorney work
product is inadvertently disclosed to testifying experts.” In Re Vioxx, 2007 WL 1558700, at *3-4
(E.D.La. May 30, 2007). Likewise, in U.S. Energy Corp. v. Nukem, Inc., the Colorado court found
support for the conclusion that “even an inadvertent disclosure of attorney work product to a
testifying expert destroy[s] any privilege which might have attached.” U.S. Energy Corp. v.
Nukem, Inc., 163 F.R.D. 344, 348 (D.Colo. 1995) (citing Boring v. Keller, 97 F.R.D. 404 (D.Colo.
1983)).
Finally, as noted above, Plaintiff’s own cases suggest that the most likely position the
Fourth Circuit would adopt in this case would be to require the production of the video statements
to Defendants. See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 257-59 (D.Md.
2008) and Hopson v. Mayor of Baltimore, 232 F.R.D. 228, 235-38 (D.Md. 2005).
Based on the foregoing, the undersigned directs Plaintiff’s counsel to provide Defendants’
counsel a copy of all the video statements viewed by Roy Taylor while reviewing this matter, on
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or before May 19, 2015. To the extent Defendants argue that Plaintiff failed to make proper initial
disclosures pursuant to Rule 26, based on subsequent briefs, it appears that situation has been
resolved. See (Document No. 88, pp.6-7; (Document No. 90). If it is not resolved, Plaintiff should
supplement her initial disclosures.
B.
Discovery Requests
Next, Defendants contend Plaintiff has failed to adequately respond to several discovery
requests. The undersigned will address each disputed request in turn below.
Interrogatory No. 11
(Document No. 84-4, p.4).
Defendants argue that Plaintiff’s response is deficient because Plaintiff does not specify
how the interrogatory is overly broad or identify what training procedure was deficient or how it
was deficient. (Document No. 85, p.7). In response, Plaintiff fails to adequately address
Defendant’s allegation in its response. (Document No. 88, p.7).
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The undersigned is not persuaded that Interrogatory 11 is overly broad. The Complaint
alleges in part that “Gaston County Police had policies, customs, usages, procedures and training
that allowed and promoted excessive and/or improper use of deadly force against individuals
suffering from emotional distress or a mental health crisis.” (Document No. 2, p.5). However,
Plaintiff’s response to the interrogatory fails to specifically identify deficiencies in Gaston Police
Department’s training, other than an alleged failure to train on the use of proper verbal commands.
(Document No. 84-4, p.4). As such, Plaintiff shall supplement her response to identify any other
deficiencies in the training of Gaston County Police Department’s officers that she alleges caused
the injury alleged in the Complaint.
Interrogatory No. 12
(Document No. 84-4, p.4).
Defendants note that Plaintiff specifically denied their request for admission “that the
Gaston County Police Department did not have a policy, custom, usage, procedure or training that
promoted using deadly force on individuals in 2015.” (Document No. 85, p.8) (citing Document
No. 84-4, p.10). Defendants contend that by this interrogatory they are simply seeking the basis
for Plaintiff’s denial.
In response, Plaintiff now states that Defendants may have lacked proper training, and that
Defendants’ customs and usages are unknown to her. (Document No. 88, pp.8-9). Plaintiff
suggests she will supplement her response in due course. Id.
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The undersigned again disagrees that Defendants’ request is overly broad. Rather, it stems
directly from one of Plaintiff’s allegations in the Complaint, as identified above. Therefore, the
undersigned finds good cause to require Plaintiff to supplement her response to this interrogatory
and further explain and/or identify the alleged policies, customs, usage, and/or training that she
contends promoted the use of deadly force on individuals in 2015.
Request for Production No. 16
(Document No. 84-4, p.7).
By the instant motion, Defendants contend that Plaintiff has failed to identify any specific
policy or procedure of the Gaston County Police Department, or which documents it relied upon
in responding to Interrogatory No. 11. (Document No. 85, p.8).
In response, Plaintiff “seeks leave to supplement its response.” (Document No. 88, p.8).
Based on the foregoing, the undersigned finds that this request is not overly broad or unduly
burdensome, and that Plaintiff should produce responsive documents.
Request for Production No. 17
(Document No. 84-4, p.7).
Defendants assert that the documents Plaintiff provided were not responsive to this request
and provide no details on where Mr. Poole was stationed. (Document No 85, p.8).
15
In response, Plaintiff suggests that this request is not relevant, but that she has produced all
available Navy documents in her possession indicating Mr. Poole’s discharge and where he was
located or stationed. (Document No 88, p.9). Plaintiff admits these documents are incomplete.
Id.
The undersigned observes that Plaintiff has declined to admit that “William Poole was not
present at the barracks for the 1st Battalion 8th Marines in Beirut, Lebanon, on October 23, 1983.”
(Document No. 84-4, p.10). The undersigned further observes that the Complaint alleges that
Poole “was [a] physically disabled veteran of the United States Navy. He retired from service on
or around 1984….” (Document No. 2, p.3). The Complaint also alleges that “Mr. Poole was
disabled due to severe back pain caused by a motorcycle accident and injuries sustained in a
terrorist attack against the Marine barracks in Beirut.” Id.
The Court directs Plaintiff to supplement her response to the extent possible, and notes that
“documents or items indicating where [Poole was] stationed, when, and for how long,” are not
limited to United States Navy records.
Request for Production No. 18
Defendants again contend that Plaintiff has failed to identify the document it relied upon.
(Document No. 85, p.9). In response, Plaintiff suggests she may be able to supplement her
response. (Document No. 88).
Based on the foregoing, the undersigned finds that Plaintiff must also supplement her
response to this request for production.
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CONCLUSION
IT IS, THEREFORE, ORDERED that “Defendants’ Motion To Compel” (Document
No. 84) is GRANTED. Plaintiff shall provide evidence and responses as directed herein, by May
19, 2017, and continue through the remainder of this lawsuit to supplement its responses to
Defendants’ discovery requests as is necessary and appropriate.
IT IS FURTHER ORDERED that Plaintiff shall reimburse Defendants for their
reasonable expenses incurred in preparing and filing Document Nos. 84, 85, and 90 in this case.
Defendants should reduce their estimated expenses for their “…Memorandum Of Law…”
(Document No. 85) based on redundant arguments in parts A. and C. The parties shall attempt to
resolve the issue of payment without further Court intervention; if such attempts fail, Defendants
may file an appropriate motion to recover expenses.
IT IS FURTHER ORDERED that Defendants’ shall provide their expert report to
Plaintiff’s counsel on or before June 2, 2017. See (Document No. 87).
SO ORDERED.
Signed: May 12, 2017
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