Prado v. Thomas et al
Filing
51
DECISION AND ENTRY- Defendants counsel reported to Plaintiffs counsel, the only notes of the meeting are the meeting minutes. Those have been provided. (Doc. #47, PageID #401). But, it is not clear from Defendant Huddlesons response that the only not es taken at the Board of County Commissioners Board Meeting are the meeting notes. Accordingly, he must provide any additional notes taken at the Board Meeting or, if warranted, must certify that he has conducted a reasonable search and found no such notes exist. Plaintiff has the initial burden of showing that the information she seeks is relevant to either partys claims or defenses. Mayer, 2016 WL 1632415, at *2 (citations omitted). She has not done so. Further, because her request lacks any s ubject restrictions, it is overly broad. Accordingly, Plaintiffs motion to compel a response to this interrogatory is denied. IT IS THEREFORE ORDERED THAT: Plaintiffs Motion to Compel is GRANTED, in part, and DENIED, in part. 47 Motion to Compel. Signed by Magistrate Judge Sharon L. Ovington on 2/22/18. (kma)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GLENDA JACQUELINE PRADO,
Plaintiff,
vs.
DEPUTY JEFFREY THOMAS, et al.,
Defendants.
:
:
:
:
:
:
:
:
:
Case No. 3:16-cv-306
District Judge Walter H. Rice
Magistrate Judge Sharon L. Ovington
DECISION AND ENTRY
I.
Introduction
Plaintiff brings this action alleging Defendants violated her constitutional rights to
equal protection and due process; conspired to violate her rights; and failed to train and
supervise employees.
This case is presently before the Court upon Plaintiff’s Motion to Compel (Doc.
#47), Defendants’ Response in Opposition (Doc. #48), and Plaintiff’s Reply (Doc. #49).
II.
Background
Plaintiff is a legal permanent resident of the United States. (Doc. #25, PageID
#25). Her original language is Spanish, her second is Arabic, and her third is English. Id.
at 119. Plaintiff “has a strong and apparent Spanish accent[.]” Id. The present case
stems from two series of events. The first involves Plaintiff’s arrest.
Specifically, Plaintiff alleges that on August 9, 2015, Defendant Jeffrey Thomas
pulled her over; improperly administered field sobriety tests; refused to explain the test
instructions; and with Defendant Sean Joseph Kessel, arrested her on suspicion of
operating a vehicle under the influence of alcohol or drugs. (Doc. #25, PageID #s 11820). Upon arrival at the jail, Plaintiff was not initially booked because her husband was
coming to pick her up. Id. at 121.
While she waited, Defendant Donna Fallis instructed Plaintiff to perform a urine
test. Id. She complied. Id. However, when Plaintiff refused to sign the unsealed,
unlabeled urine vial, Defendant Thomas threw it in the trash and told Defendant Fallis to
book Plaintiff. Id. “Plaintiff was ordered to disrobe and was ordered to take a cold
shower and given a towel used for cleaning the floor, … Plaintiff was then placed in jail
clothing, ….” Id. at 121-22. Her name (and photograph) was listed online as an inmate
of the Greene County Jail. Id. at 122. When Plaintiff’s husband arrived, she was
released. Id.
Later that day, Defendant Thomas informed Plaintiff’s husband that his
supervisor, Defendant Jimmy Combs, told him that it was wrong to throw Plaintiff’s
urine test away and as a result, Defendant Thomas removed the test from the trash and
planned to submit it for analysis. Id. According to Plaintiff, “Defendant Combs was
ordered by Defendant Major Kirk Keller or a subordinate at his direction to have Thomas
fish the Plaintiff’s urine sample from the trash and submit it for analysis ….” Id. at 126.
On August 10, 2015, Plaintiff was charged in Fairborn Municipal Court with “OVI
drug impairment.” Id. at 123. As part of discovery in the criminal case, Plaintiff
requested all cruiser videos, and initially, Defendant Thomas only produced a six-minute
video of him transporting Plaintiff to the jail. Id. However, after further motions were
2
filed, Defendant Thomas produced “the nearly complete arrest video on a format that
cannot be accessed and on a DVD that did not include date and time ….” Id. On
October 1, 2015, Defendant Thomas received the results of Plaintiff’s urine test—
Plaintiff had no drugs or alcohol in her system. Id. Plaintiff learned of these results on
October 10, 2015, and her charge was dismissed on October 11, 2015. Id.
The second series of events involves Plaintiff’s employment as a caseworker at the
Greene County, Ohio, Children’s Services Board. Id. at 125. After she was terminated
from that position on March 11, 2015, Plaintiff filed a complaint for employment
discrimination with the Equal Employment Opportunity Commission. Id. Plaintiff
specifically named Beth Keller, the wife of Defendant Major Kirk Keller. Id. Defendant
Keller is the supervisor of the Greene County, Ohio Jail and road patrol. Id.
These two series of events collided on September 9, 2015 at a mediation
conference regarding Plaintiff’s EEOC claim. Id. at 126. Plaintiff alleges that Defendant
Huddleson, the Greene County Administrator, “refused to offer any resolution to the
EEOC complaint and prosed [sic: probably “proposed”] to provide documents to the
mediator and counsel which contained Plaintiff’s arrest record and inmate photograph, …
[He] attempted to use these documents to intimidate Plaintiff in her complaint for
employment discrimination, … [He] was supplied these documents by the Greene
County, Ohio Sheriff’s Office from Jail records under Defendant Major Kirk Keller’s
control ….” Id.
3
III.
Standard of Review
Under the Federal Rules of Civil Procedure, the scope of discovery is
“traditionally quite broad.” Lewis v. ACB Bus. Servs, Inc., 135 F.3d 389, 402 (6th Cir.
1998) (citing Mellon v. Cooper–Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)). The
modern view remains so, albeit with guideposts:
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). “[T]his desire to allow broad discovery is not without limits and
the trial court is given wide discretion in balancing the needs and rights of both plaintiff
and defendant.” Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991).
A party may file a motion to compel discovery when the opposing party fails to
provide proper responses to requests for production under Rule 34, fails to answer an
interrogatory submitted under Rule 33, or fails to make a disclosure required by Rule
26(a). Fed. R. Civ. P. 37(a)(3). “[T]he proponent of a motion to compel discovery bears
the initial burden of proving that the information sought is relevant.” Mayer v. Allstate
Vehicle & Prop. Ins. Co., No. 2:15-cv-2896, 2016 WL 1632415, at *2 (S.D. Ohio Apr.
22, 2016) (Deavers, M.J.), objections overruled, No. 2:15-cv-2896, 2016 WL 2726658
(S.D. Ohio May 10, 2016) (Marbley, D.J.) (quoting Guinn v. Mount Carmel Health Sys.,
4
No. 2:09-cv-226, 2010 WL 2927254, at *5 (S.D. Ohio July 23, 2010) (Kemp, M.J.);
Clumm v. Manes, No. 2:08-cv-567 (S.D. Ohio May 27, 2010) (King, M.J.)); see also
United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016) (“In cases
where a relevancy objection has been raised, the party seeking discovery must
demonstrate that the information sought to be compelled is within the scope of
discoverable information under Rule 26.”). If the proponent meets its initial burden, then
“the party resisting production has the burden of establishing that the information is
either not relevant or is so marginally relevant that the presumption of broad disclosure is
outweighed by the potential for undue burden or harm.” Pillar Title Agency v. Pei, No.
2:14-cv-525, 2015 WL 2238180, at *3 (S.D. Ohio May 12, 2015) (Kemp, M.J.) (citing
Vickers v. Gen. Motors Corp., No. 07-2172 M1/P, 2008 WL 4600997, at *2 (W.D. Tenn.
Sept. 29, 2008)).
IV.
Discussion
Plaintiff initially sought to compel responses to interrogatories and/or requests for
production in four areas: computer communications, raw footage of Plaintiff’s arrest,
telephone records, and a Greene County Board of Commissioners meeting. However,
Plaintiff subsequently agreed that “Defendants responded ….” to her request for “[a]ll
computer communications of any type or media ….” (Doc. #47, PageID #366); (Doc.
#49, PageID #469). Accordingly, that issue is moot.
A.
Raw Footage
In Plaintiff’s Second Request for Production to Defendant Keller, she requested
“All raw footage from the cruiser camera and audio recording devices of the cruisers of
5
Deputy Jeffrey Thomas and Deputy J. Kessell of the stop, detention and arrest of Plaintiff
on August 9, 2015.” (Doc. #47, PageID #376). Defendant Keller objected on the
grounds that the request was overly broad and ambiguous and responded that he “is not in
possession of the requested material, nor does he have access to such material, as it no
longer exists consistent with the Greene County Ohio and Greene County Sheriff's Office
Schedule of Records Retention and Disposition (RC-2).” (Doc. #48-7, PageID #441).
In Plaintiff’s supplemental interrogatories, she asked Defendant Keller, “Are
copies or original recordings of cruiser cam video and/or audio recordings of the Greene
County, Ohio Sheriff s Office forwarded to and/or located in any other agency or
location? If so, where?” (Doc. #48-8, PageID #443). Defendant Keller again objected
and responded: “The cruiser camera footage and audio recordings of Plaintiff’s arrest on
August 19, 2015 were disposed of in accordance with Greene County Ohio and Greene
County Sheriff’s Office Schedule of Records Retention and Disposition (RC-2) in place
at the time. They were not sent to any other location other than [to] Plaintiff’s counsel.”
Id.
Plaintiff contends that Defendant Keller’s responses are not entirely accurate.
(Doc. #47, PageID #367). She explained, “discovery revealed the existence of a
previously undisclosed server that automatically recorded data from cruisers and was
tamper-proof. Previous responses only concerned DVDs taken from the cruisers.” (Doc.
#49, PageID #470). Plaintiff incorrectly claims that she sought “additional clarification
and a sworn statement …” from Defendants’ counsel. (Doc. #47, PageID #367).
Instead, she requested “either that I be provided some documentation of this process or a
6
sworn statement by someone with the responsibility for this server explaining not only
what policy or procedure is involved, but also, mechanically and physically, how such
deletions are done.” Id. at 386 (emphasis added).
On January 4, 2018, the Greene County “Sheriff’s Office IT/tech individual”
responded to several of Plaintiff’s questions concerning the automatic purging of videos
and the specific videos in question.1 Id. at 391. The IT person explained that there are
two videos associated with the present case—both of which are “offline.” Id. She
included screen shots of “Video Logs from both videos” that show both videos were
“deactivated” on July 20, 2016. Id. at 392. The IT person also generally explained the
former and current retention schedules:
The dates would have to be confirmed, but the Retention
Schedule and the General Order have both been updated as it
pertains to in[-]car video. The old Retention Schedule only
included Schedule 11-70 DVDS – Recorded from patrol cars’
in-car camera – DVDs may be erased and reused after sixty
(60) days and No RC-3 required for destruction. I do not see
where the Retention Schedule covered anything other than the
DVDs; no specifics from the server storage as we have now.
This was changed and the server side added to our current
schedule of 16-81, 16-82, 16-83 and 16-84 (below). The date
the addition for the server side of the L3 to the Retention
Schedule would need to be confirmed with Robin in County
Archives.
Id. Plaintiff takes this to mean that the IT person cannot confirm the dates the particular
videos in this case were purged. (Doc. #49, PageID #470). But that is not correct. The
IT person unequivocally states that the videos related to Plaintiff’s arrest are “offline”
1
Defendants’ attorney forwarded these responses to Plaintiff’s attorney.
7
and “deactivated.” The IT person is less definitive when discussing new and old
retention schedules generally and when they changed.
The retention schedules were not the subject of the interrogatory or request for
production. Defendant Keller’s response to Plaintiff’s interrogatory and request for
production establish that he does not have a copy of the videos, is not aware of any copies
of the videos, and does not have a way to obtain a copy of the videos. The IT person’s
response supports Defendant Keller’s response. Accordingly, Plaintiff’s Motion to
Compel production of the raw footage of Plaintiff’s arrest is denied.
B.
Defendant Keller’s Phone Records
In Plaintiff’s Third Request for Production of Documents to Defendant Keller, she
requests:
All cellphone and land line telephone records for phones used
by you of calls, texts and/or communications of any sort to
communicate with other Defendants in this case and/or
employees of Greene County, Ohio Department of Job and
Family Services, Children’s Services, for the period August 8,
2015 through August 11, 2015.
(Doc. #48-1, PageID #418 (emphasis in original)). Defendant Keller objected but
nevertheless responded that “the only phone used by him was his personal cellular
phone.” Id. at 419. Further, he indicated that he “did not communicate with other
Defendants in this case and/or employees of Greene County, Ohio Department of Job and
Family Services, Children Services for the stated period on his cellular phone except for
his wife, Beth Keller on August 8 and 11.” Id. Defendant Keller also provided his cell
phone record from those dates and a brief explanation: “There were calls to a Greene
8
County Deputy Banks and a Greene County Lieutenant Wooten on August 8th as that
was the final day of the Greene County Fair detail. On August 11th there was a call to
Greene County Captain Goodman, who is the Assistant Jail Administrator that supervises
the Adult Detention Center.” Id.; (Doc. #48-13, PageID #457). The last four digits of
every phone number is redacted.
Plaintiff alleges that Defendant Keller’s response is inadequate. “The redaction
defeats the purpose of the request. Plaintiff is interested in conversations between parties
and with employees of Greene County Children’s Services.” (Doc. #49, PageID #469).
Defendant Keller’s apprehension to provide the complete telephone numbers of
individuals not involved in this case is reasonable in light of their privacy interests.
Accordingly, Defendant Keller shall file under seal an unredacted copy of his cell phone
record to the Court by March 8, 2018 for in camera review. Defendant Keller shall
identify the individuals to whom the telephone numbers belong.
C.
Defendant Huddleson
In Plaintiff’s “Additional Interrogatories,” she asks that Defendant Huddleson:
Please state all items discussed in any manner by personnel
employed by Greene County, Ohio, including but not limited
to elected officials, employees, attorneys and/or consultants
retained by Greene County, Ohio at the Greene County, Ohio
Board of Commissioners’ meeting on August 20, 2015 both
prior to or after the official meeting was concluded.
(Doc. #48-16, PageID #466).
Defendant Huddleson objected on the grounds that it is “Overly broad, vague,
ambiguous, and unduly burdensome. This Interrogatory fails to specify the topics of
9
discussions requested or provide a reasonable time period or limited to specific
individuals regarding when any requested discussions took place.” Id. at 466. Further,
he “objects to the foregoing Interrogatory on the basis that it is not relevant to any party’s
claim or defense and proportional to the needs of the case.” Id. Finally, “Defendant
objects to the extent it seeks items discussed with attorneys for Greene County, Ohio on
the basis of attorney client privilege.” Id.
Defendants’ counsel further explained to Plaintiff’s counsel,
[T]he reason we have not been able to respond is that it is
simply so broad, I am not certain what it is you are asking for.
To just say you want to know what officials, employees,
attorneys and/or consultants discussed before and after a
meeting without any context or topic, I have no idea what you
are seeking. Frankly, they could have discussed what they
had for breakfast, but I’m fairly certain that is not what you
are interested in. Please clarify and specify whether there is a
specific topic or individual that you are inquiring about to see
if it was discussed and if so, what was discussed.
(Doc. #47, PageID #401).
Plaintiff asserts, “if Plaintiff had any knowledge of who Huddleson spoke to or the
topics of conversation, as suggested by [opposing] Counsel …, she would not have had to
ask the question.” (Doc. #49, PageID #469).
Plaintiff has the initial burden of showing that the information she seeks is
relevant to either party’s claims or defenses. Mayer, 2016 WL 1632415, at *2 (citations
omitted). She has not done so. Further, because her request lacks any subject
restrictions, it is overly broad. Accordingly, Plaintiff’s motion to compel a response to
this interrogatory is denied.
10
Plaintiff also requests, “Any and all notes taken at the Greene County, Ohio Board
of Commissioners’ meeting on August 20, 2015.” (Doc. #48-16, PageID #466).
Defendant Huddleson objected to this request on the grounds that it is “Overly broad,
vague, and ambiguous.” Id. Further, “it is not relevant to any party’s claim or defense
and proportional to the needs of the case.” Id. at 467. Defendant Huddleson nevertheless
responded: “See attached minutes of Board of County Commissioners Board Meeting
and work session on August 20, 2015, Bates Nos. PRADO S0001964-1967; PRADO
S0001981-1984. Previously provided on September 1, 2017.” Id.
Defendants’ counsel reported to Plaintiff’s counsel, “the only ‘notes’ of the
meeting are the meeting minutes. Those have been provided.” (Doc. #47, PageID #401).
But, it is not clear from Defendant Huddleson’s response that the only notes taken at the
Board of County Commissioners’ Board Meeting are the meeting notes. Accordingly, he
must provide any additional notes taken at the Board Meeting or, if warranted, must
certify that he has conducted a reasonable search and found no such notes exist.
IT IS THEREFORE ORDERED THAT:
Plaintiff’s Motion to Compel is GRANTED, in part, and DENIED, in part.
February 22, 2018
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?