Wheatt et al v. City of East Cleveland et al

Filing 128

Opinion & Order signed by Judge James S. Gwin on 11/15/17. The Court, for the reasons set forth in this order, denies without prejudice plaintiffs' motion for further sanctions, denies the City defendants' motion to strike Tamika Ha rris' affidavit, and denies the County defendants' motion to compel. The Court further orders the City defendants to produce a competent and prepared Rule 30(b)(6) witness within seven days of the date of this order. City defendants shall pay the court reporter and transcript costs of this deposition, as well as plaintiffs' reasonable attorneys' fees. (Related Docs. 103 , 110 , 116 , and 119 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
DERRICK WHEATT, et al.,
:
:
Plaintiffs,
:
:
v.
:
:
CITY OF EAST CLEVELAND, et al.,
:
:
Defendants.
:
:
-------------------------------------------------------

CASE NO. 1:17-CV-377
consolidated with
CASE NO. 1:17-CV-611
OPINION & ORDER
[Resolving Doc. Nos. 103, 110, 116, 119]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

In this 42 U.S.C. § 1983 action, the parties have filed numerous motions stemming from
discovery disputes and other pre-trial conflicts. Plaintiffs seek sanctions against the City of East
Cleveland Defendants (hereinafter “the City” or “the City Defendants”) for their failure to
designate an appropriate Federal Rule of Civil Procedure 30(b)(6) witness.1
The City Defendants move to strike Tamika Harris’ affidavit.2 Defendants Cuyahoga
County, Naiman, and Dunn (“the County Defendants”) move the Court to compel Plaintiffs to
respond to their written discovery requests.3
For the following reasons, the Court DENIES Plaintiffs’ motion for sanctions without
prejudice, DENIES the City Defendants motion to strike, and DENIES the County Defendants’
motion to compel.

1

Doc. 103. The City Defendants oppose. Doc. 108. Plaintiffs reply. Doc. 114. The City Defendants
sur-reply. Doc. 116. Plaintiffs oppose the filing of this sur-reply. Doc. 120. The Court denies the City
Defendants motion seeking to sur-reply as moot.
2
Doc. 110. Plaintiffs oppose. Doc. 112.
3
Doc. 119. Plaintiffs oppose. Doc. 121.

Case No. 1:17-cv-377
Gwin, J.
I. Background
This civil rights actions stems from the now-overturned convictions of Plaintiffs Derrick
Wheatt, Laurese Glover, and Eugene Johnson. After spending well over a decade in prison for a
murder that they maintain they did not commit, Plaintiffs were released from prison and given a
new trial. In granting the motion for a new trial, an Ohio court found that arguably exculpatory
evidence had been withheld from Plaintiffs. Plaintiffs now seek compensation for the alleged
constitutional violations that put and kept them imprisoned.4
As part of this suit, Plaintiffs seek to use Federal Rule of Procedure 30(b)(6) to depose a
City of East Cleveland representative on a number of issues related to how the City handled
public records requests in 1998. The motions discussed in this order have grown out of this and
other discovery disputes among the parties.
II. Legal Standard
Federal Rule of Civil Procedure 30(b)(6) allows a party to name a “public or private
corporation, a partnership, an association, or other entity” as a deponent. The party seeking to
depose this entity “must describe with reasonable particularity the matters for examination.”5
Once named as a deponent, an entity “must then designate one or more officers, directors,
or managing agents, or designate other persons who consent to testify on its behalf.”6 These
designated persons “must testify about information known or reasonably available to the
organization.”7

The Court presents a more detailed factual background in its order deciding the parties’ summary
judgment motions. See Doc. 124.
5
Fed. R. Civ. P. 30(b)(6).
6
Id.
7
Id.
4

-2-

Case No. 1:17-cv-377
Gwin, J.
If a party fails to comply with a Rule 30(b)(6) subpoena, Rule 37(b)(2)(A) describes
numerous sanctions that a court may impose against the noncompliant party. These include
taking the subjects of the deposition as established for purposes of the action,8 or “prohibiting the
disobedient party from supporting or opposing designated claims or defenses.”9 Rule
37(b)(2)(C) also permits a court to order the payment of reasonable expenses and attorney’s fees
as a sanction.
The Sixth Circuit has adopted a four-factor test regarding whether to impose sanctions:
(1) whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the party’s failure to cooperate in the discovery; (3)
whether the party was warned that failure to cooperate could lead to the sanction; and (4)
whether less drastic sanctions were first imposed or considered.10
III. Analysis
A. Plaintiffs’ Motion for Sanctions
1. The City Defendants’ Inability to Designate a Rule 30(b)(6) Witness
Both Magistrate Judge Baughman and this Court have ordered the City of East Cleveland
to designate a Rule 30(b)(6) witness who is competent to testify about the matters Plaintiffs
requested. The City has failed to do so.
The Court recognizes that the events the City’s 30(b)(6) witness would testify about
occurred almost two decades ago. In that time, memories fade, documents are lost or innocently
destroyed, and relevant parties may leave the Court’s jurisdiction. If the City had shown that it

8

Fed. R. Civ. P. 37(b)(2)(A)(i).
Fed. R. Civ. P. 37(b)(2)(A)(ii).
10
Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997).
9

-3-

Case No. 1:17-cv-377
Gwin, J.
undertook a diligent inquiry in an attempt to respond to Plaintiffs’ request, but the passage of
time made their search impossible, the Court would see no reason for sanctions.
That is not what happened here. In response to Plaintiffs’ request that the City designate
a 30(b)(6) witness, the City has attempted to designate three people. Initially, the City failed to
designate anyone, purportedly because of the years between the events at issue in this case and
the present litigation.11
Magistrate Judge Baughman then met with the parties and determined that the City had
failed to perform a due diligent inquiry before failing to name a designee.12 He ordered the City
to perform its due diligence and to designate someone within thirty days of his order.13
Shortly after Judge Baughman’s order, the City attempted to designate the former Mayor
of East Cleveland, Emmanuel Onunwor.14 The City, however, has had zero contact with the
former Mayor, and his location is currently unknown to the City.15
Then, the City designated Detective Patricia Lane, a named defendant who was, in
counsel for the City’s words, “in a coma.”16 This designation of someone so patently
unavailable and unprepared to testify suggests that the City either willfully disobeyed Judge
Baughman’s order, or, at best, negligently ignored his order to perform “due diligent inquiry.”
This Court then informed the City that neither Detective Lane nor Mayor Onunwor was a
proper designation, and ordered the City to designate a witness who was competent to testify
within thirty days.17 The same day that this Court issued that order, the City designated former

11

See Doc. 62.
Id.
13
Id.
14
See Doc. 56-2.
15
Id.
16
See Doc. 70-1.
17
See Doc. 75.
12

-4-

Case No. 1:17-cv-377
Gwin, J.
East Cleveland Law Director Helen Forbes Fields.18 Ms. Forbes Fields is medically available to
testify, and the City knows her location.19
The City, however, apparently never informed Ms. Forbes Fields that she would be the
City’s designated witness. After Plaintiffs subpoenaed Ms. Forbes Fields and scheduled her
deposition in consultation with the City, Ms. Forbes Fields called Plaintiffs’ attorneys. She told
them that she (1) lacked any knowledge of the information Plaintiffs would depose her about,
other than what she had previously stated in an affidavit, and (2) was unavailable at the time of
her scheduled deposition.20
These facts make clear that the City never contacted Ms. Forbes Fields when scheduling
her deposition with Plaintiffs, made no effort to prepare Ms. Forbes Fields, and seemingly did
not contact her about serving as the designated witness. These lapses are especially troubling,
because Federal Rule of Civil Procedure 30(b)(6) explicitly states that an organization must
designate some person “who consent[s] to testify on its behalf.”21
The City’s repeated failure to designate an adequate 30(b)(6) witness is particularly
perplexing because Rule 30(b)(6) has no personal knowledge requirement for the designated
witness. Indeed, the plain text of the rule shows that the City could even designate any of its
current “officers, directors, or managing agents,” so long as the City adequately prepared that
designee to testify.22
2. Sanctions
Plaintiffs seek Rule 37 sanctions against the City Defendants.

18

See Doc. 103-1.
Id.
20
See Doc. 103-4.
21
Fed. R. Civ. P. 30(b)(6) (emphasis added).
22
Id.
19

-5-

Case No. 1:17-cv-377
Gwin, J.
Plaintiffs argue that the appropriate sanction is for the Court to deem two facts as
established for the purposes of trial.23 First, that the City intended to produce the Clifton Hudson
homicide police file in 1998 until it received the June 24 letter signed by Defendants Naiman and
Marino. Second, that there was no lawful or otherwise legitimate basis for the City to refuse to
produce that file.
In addition or in the alternative, Plaintiffs ask the Court to restrain the City Defendants
from arguing or introducing evidence at trial that (1) the City did not intend to produce the
Clifton Hudson police file in 1998 until receiving the June 24 letter, and (2) that the City had a
lawful or otherwise legitimate basis for failing to produce that file.24
The Court finds that the facts discussed above amount to “willfulness, bad faith, or fault”
by the City, satisfying the first prong of the Sixth Circuit’s test for sanctions.25 Further, the
second prong, prejudice to the opposing party, is also satisfied. Plaintiffs intend to argue at trial
that the City had no policy or other good faith reason to deny the 1998 public records request; the
City’s failure to produce a 30(b)(6) witness will prejudice Plaintiffs’ efforts.26
In light of the final two prongs of the Sixth Circuit’s four-part test for sanctions,27
however, the Court declines to issue Plaintiffs’ requested sanctions at this time. Instead, the
Court orders the City to produce a competent and prepared 30(b)(6) witness within seven (7)
days of the date of this order. That witness will be deposed at Plaintiffs’ convenience, prior to
the close of discovery.

23

See Fed. R. Civ. P. 37(b)(2)(A)(i).
See Fed. R. Civ. P. 37(b)(2)(A)(ii).
25
See Freeland, 103 F.3d at 1277.
26
See id.
27
Id. (noting that when determining the appropriateness of sanctions the Sixth Circuit considers whether
the Court warned the sanctioned party prior to issuing sanctions, and whether a district court first
considered less drastic sanctions).
24

-6-

Case No. 1:17-cv-377
Gwin, J.
As a sanction, the City Defendants will pay the court reporter and transcript costs of this
deposition. Additionally, the City Defendants will pay Plaintiffs’ expenses and reasonable
attorneys’ fees incurred during the actual taking of this deposition.
If the City fails to comply with this order without showing good cause prior to their
failure, the Court will impose Plaintiffs’ requested Rule 37 sanctions. The Court will also
consider awarding Plaintiffs’ their reasonable attorneys’ fees and expenses incurred in the
process of litigating this Rule 30(b)(6) issue.
B. The City Defendants’ Motion to Strike Tamika Harris’ Affidavit and the County
Defendants’ Motion to Compel
The City Defendants ask this Court to strike Tamika Harris’ 2004 affidavit because it is
unsworn and unsigned. Upon review, however, that affidavit is both sworn and signed before a
notary.28 The Court DENIES this motion.
The County Defendants ask this Court to compel Plaintiffs to respond to their written
discovery requests and to extend the discovery deadline. The County Defendants initially
requested that Plaintiffs respond to their discovery requests by October 23, 2017 and they filed
this motion to compel on October 25, 2017.
Plaintiffs responded to the County’s requests on October 25 and October 26, 2017. The
County’s motion to compel is therefore moot, and this minimal delay does not warrant an
extension of the discovery deadline.
The Court DENIES this motion to compel.

28

See Doc. 79-22.

-7-

Case No. 1:17-cv-377
Gwin, J.
IV. Conclusion
The Court ORDERS the City Defendants to produce a competent and prepared Rule
30(b)(6) witness within seven days of the date of this order. The Court also ORDERS the City
Defendants to pay the court reporter and transcript costs of this deposition, as well as Plaintiffs’
reasonable attorneys’ fees incurred taking this deposition.
The Court DENIES without prejudice Plaintiffs’ motion for further sanctions.
The Court DENIES the City Defendants’ motion to strike Tamika Harris’ affidavit. The
Court DENIES the County Defendants’ motion to compel.
IT IS SO ORDERED.

Dated: November 15, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

-8-