Stillwagon v. The City of Delaware et al

Filing 126

ORDER granting in part (88) Motion to Compel in case 2:14-cv-807-EAS-TPK (80 in case 2:14-cv-1606-EAS-TPK); denying (92) Motion for Protective Order in case 2:14-cv-00807-EAS-TPK. Signed by Magistrate Judge Terence P. Kemp on 10/26/2016. Associated Cases: 2:14-cv-00807-EAS-TPK, 2:14-cv-01606-EAS-TPK (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
James R. Stillwagon,

:

Plaintiff,

:

v.

:Case No. 2:14-cv-807
:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
:

The City of Delaware,
et al.,
Defendants.

:

James R. Stillwagon,

:

Plaintiff,

:

v.

:Case No. 2:14-cv-1606
:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
:

Officer James Ailes,
et al.,
Defendants.

:
ORDER

The background of this case is set forth in prior orders of
the Court and will not be repeated here.

The purpose of this

order is to resolve two pending discovery-related motions:
Plaintiff’s motion to compel complete answers and verification
from Defendant Mattingly (Doc. 88) and Defendant Radabaugh’s
motion for a protective order (Doc. 92)(the Court will use the
filing numbers for Case No. 14-cv-807).

For the following

reasons, the first motion will be granted, and the second will be
denied.
I.

Motion to Compel

Richard Mattingly is one of the defendants in this case.
is representing himself.

In an order dated December 11, 2015,

He

the Court directed Mr. Mattingly to answer interrogatories served
on him by Plaintiff pursuant to Fed.R.Civ.P. 33.

According to

Plaintiff’s more recent motion on this subject, Mr. Mattingly did
provide a response to the interrogatories which is, in most
respects, complete and responsive, but he did not fully answer
interrogatories Nos. 5 and 7 and did not verify his responses.
Mr. Mattingly has not responded to this motion.
Turning first to the two interrogatories in question, the
first of them asked Mr. Mattingly if he or anyone at the Delaware
Police Department notified his probation officer of his 2013
arrest for DUI and his subsequent conviction on a reduced charge
of reckless operation; and, if so, who reported those things, to
whom, and when (Interrogatory No. 5).

The second, Interrogatory

No. 7, asked him whether, after September 30, 2012 (the date of
the incident involved in this case), he had anyone either inspect
or repair his truck with respect to certain issues; and, if so,
who did that, when they did it, and what they did.

He responded

to the first question by indicating that his parole officer was
notified of his DUI arrest shortly after it took place and also
was told about his conviction.
attached a bill for repairs.

In response to the second, he

The bill is dated January 6, 2014

and does not appear to address any engine problems, transmission
problems, power steering issues, or problems with the truck’s
drawing power or shorting out or pulling in any direction, which
were the subjects mentioned in the interrogatory.
After receiving Mr. Mattingly’s answers, counsel for
Plaintiff wrote to him asking for a more complete answer to these
interrogatories.

The letter pointed out that, in response to

Interrogatory No. 5, Mr. Mattingly had not said who notified his
parole officer of his arrest and conviction, who his parole
officer was, and the specific date.

It also pointed out the

deficiency in the answer to Interrogatory No. 7.
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Mr. Mattingly

also did not verify his interrogatory answers, and counsel wrote
him a separate letter asking him to do so.

There is nothing in

the record to suggest that Mr. Mattingly responded to either of
these letters.
Interrogatories are governed by Fed.R.Civ.P. 33.

One

subsection of that Rule, Rule 33(b)(3), states that “[e]ach
interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath.”

The word

“fully” means, in the context of this Rule, that the answer must
respond to each part of the question.

Courts have frequently

ordered a party to provide a more complete answer to
interrogatories when the initial answer does not respond fully to
the question being asked.

See, e.g., Equal Rights Center v. Post

Properties, Inc., 246 F.R.D. 29, 33 (D.D.C. 2007)(ordering more
complete answers to interrogatories because party’s original
answers failed “to completely and fully address the question
asked of it”).

See also Hansel v. Shell Oil Corp., 169 F.R.D.

303, 305 (E.D. Pa. 1996)(“Parties must provide true, explicit,
responsive, complete, and candid answers to interrogatories”).
The Court agrees with Plaintiff that Mr. Mattingly’s answer
to Interrogatory No. 5 is not fully responsive.

He did omit the

details which were asked for in the interrogatory and in
counsel’s letter.

The Court will therefore direct him to

supplement that answer.
Interrogatory No. 7 stands on a different footing, however.
Mr. Mattingly responded with reference to a single repair bill.
The only inference which can be drawn from that answer is that
the items on the repair bill were the only ones which he asked
someone to look at or to correct.

To the extent that the bill

makes no reference to the types of issues described in the
interrogatory, Mr. Mattingly has said that no one looked at these
issues.

The Court views his answer as responsive, but he should
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understand that he will not be able to give a different answer to
this question at trial, because he will be bound by his
interrogatory answer.
Finally, Plaintiff is correct that Rule 33(b)(3) requires
answers to interrogatories to be given “under oath.”

28 U.S.C.

§1746 permits, in lieu of an oath, that statements otherwise
required to be sworn to be made “under penalty of perjury ....”
That statute applies to interrogatories.

See, e.g., DeCola v.

Kosciusko County Sheriff’s Dept., 2007 WL 1650921 (N.D. Ind. June
5, 2007).

Consequently, Mr. Mattingly will be directed to

provide either an oath or declaration under penalty of perjury in
support of his answers.
II.

Motion for a Protective Order

The motion for a protective order was filed by a different
defendant, John Radabaugh.

Its premise is simple enough.

He had

been noticed for a deposition, but claimed that his medical
condition did not allow him to be deposed, and when Plaintiff did
not voluntarily withdraw the deposition notice, he moved for a
protective order.

Although both parties (and particularly

Plaintiff) devote some of their briefing to a procedural history
of the efforts to have Sergeant Radabaugh deposed, outlining
efforts which go back almost a year, the key question is whether
Sergeant Radabaugh has satisfied his burden of showing that a
deposition of some type would affect his health.

Because he has

not, the motion for a protective order will be denied.
The only evidentiary support provided in support of the
motion for a protective order is a letter from the Wexner Medical
Center at the Ohio State University signed by “Jeff Stemen, LPCCS, LICDC, NCC,” who represents himself as a Psychiatric
Counselor.

In a two-paragraph unsworn letter dated August 17,

2016, he makes these relevant statements:
(1) “Mr. Radabaugh has been in the care of the Ohio State
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University since 5/31/2016 for treatment of chronic, severe,
Posttraumatic Stress Disorder.”
(2) The “type of unnecessary stress” caused by attending a
deposition “would very likely result in emotional damage that
would hinder his recovery and we do not support his participation
in any proceedings”; and
(3) “Any further consideration regarding this matter should
be revisited 3-6 months from now with his outpatient treatment
providers.”
The letter contains no indication that Mr. Stemen, who may or may
not be one of Sgt. Radabaugh’s treatment providers, was told
anything about the subject of the deposition, the nature of this
lawsuit, or the possibility of conducting the deposition in such
a way as to minimize stress, such as by spreading it out over
several days, taking it in a comfortable environment, or other
possible arrangements.

The letter is part of the back-and-forth

correspondence between counsel about the deposition, and there
appears to have been no effort to obtain an affidavit or
declaration from either Mr. Stemen or any other treatment
provider.
Plaintiff argues that the motion for a protective order is
not properly supported as required by Local Civil Rule 7.2(d)
(“Evidence shall be presented, in support of or in opposition to
any motion, using affidavits, declarations pursuant to 28 U.S.C.
§ 1746, deposition excerpts, admissions, verified interrogatory
answers, and other documentary or electronic exhibits”), and the
Court agrees.
value.

The letter described above has no evidentiary

It is not even authenticated.

Further, it does not

satisfy what both parties assert to be the applicable legal
standard, set forth this way in Schorr v. Briarwood Estates Ltd.
Partnership, 178 F.R.D. 488, 491 (N.D. Ohio 1998):
The party seeking a protective order bears the burden
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of establishing good cause and a specific need for
protection. Landry v. Air Line Pilots Ass'n. Int'l
AFL–CIO, 901 F.2d 404, 435 (5th Cir.), cert. denied,
498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990). In
seeking to prevent or delay a deposition on medical
grounds, the moving party has the burden of making a
specific and documented factual showing that the
deposition will be dangerous to the deponent's health.
Medlin v. Andrew, 113 F.R.D. 650, 653 (M.D.N.C.1987);
cf. Butler v. Burroughs Wellcome, Inc., 920 F.Supp. 90
(E.D.N.C.1996)
See also Campos v. Webb County Tex., 288 F.R.D. 134, 136 (S.D.
Tex. 2012)(“conclusory or speculative statements by a treating
physician about the harm which will be suffered without a
protective order are simply insufficient”).

For the reasons

already stated, it is hard to describe the Stemen letter as
anything but conclusory or speculative.

The Court concludes that

Sgt. Radabaugh has not met his “substantial burden of showing
‘extraordinary circumstances based on specific facts that would
justify such an order.’”

Id., quoting Jennings v. Family Mgmt.,

201 F.R.D. 272, 275 (D.D.C. 2001).
In his reply, Sgt. Radabaugh suggests that the Court should
grant him a temporary protective order so that he might come
forward with more evidence supporting his claim of medical
inability to be deposed.

The Court rejects that suggestion.

The

requirement to produce specific, detailed, sworn evidence in
support of this type of protective order is well established in
the case law, and was a primary focus of the responsive
memorandum.

The reply did not provide any additional evidence,

nor did Sgt. Radabaugh seek leave to file additional evidence,
which would ordinarily not be permitted as part of the reply.
For all of these reasons, the Court will deny the motion, but
strongly recommends to counsel that they make every effort to
accommodate whatever legitimate concerns may exist about the
impact of a deposition on Sgt. Radabaugh’s mental health and
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well-being.
IV.

Order

Based on the foregoing, the motion to compel (Doc. 88) is
granted in part.

Within fourteen days, Mr. Mattingly shall

supplement his answer to Interrogatory No. 5 and provide a
verification for all of his answers.

The motion for a protective

order (Doc. 92) is denied.
V.

Motion for Reconsideration

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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